Citation Nr: 21013784 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 13-10 937 DATE: March 10, 2021 ORDER Entitlement to an increased rating for asthma in excess of 10 percent prior to April 9, 2012; in excess of 30 percent from April 9, 2012, to July 29, 2014; and in excess of 50 percent since July 29, 2014 is denied. REMANDED Entitlement to a rating in excess of 10 percent for left knee arthritis is remanded. Entitlement to a rating in excess of 10 percent for left knee instability prior to December 18, 2017; and in excess of 20 percent since December 18, 2017 is remanded. Entitlement to a rating in excess of 10 percent prior to July 8, 2009, for right knee, status post arthroscopic medial meniscectomy with degenerative joint disease (DJD) is remanded. Entitlement to a rating in excess of 10 percent for right knee instability prior to July 8, 2009, and a compensable rating since August 31, 2010 is remanded. Entitlement to a rating in excess of 60 percent for right total knee arthroplasty (TKA) from August 31, 2010 to the present is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) (excluding a period of temporary total evaluation from October 28, 2015, to February 1, 2016) is remanded. FINDINGS OF FACT 1. Prior to April 9, 2012, the Veteran’s asthma did not manifest worse than Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent of predicted value, or the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy. 2. From April 9, 2012 to July 29, 2014, the Veteran’s asthma did not manifest worse than 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. 3. Since July 29, 2014, the Veteran’s asthma did not manifest worse than 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. 4. Since July 29, 2014, the Veteran’s obstructive sleep apnea did not manifest worse than requiring use of a breathing assistance device such as continuous airway pressure (CPAP) machine. The Veteran’s sleep apnea did not manifest respiratory failure with carbon dioxide retention or cor pulmonale, or require a tracheotomy. CONCLUSION OF LAW The criteria for an increased rating for asthma in excess of 10 percent prior to April 9, 2012; in excess of 30 percent from April 9, 2012, to July 29, 2014; and in excess of 50 percent since July 29, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6602 and 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Navy from June 1982 to October 1996. This appeal arises from an October 2008 rating decision, denying a March 2008 increased rating claim in excess of 10 percent for right knee status-post arthroscopic medial meniscectomy with DJD; denying an increased rating claim in excess of 10 percent for left knee arthritis; and awarding separate 10 percent evaluations for instability for each knee, effective March 28, 2008. This appeal also arises from an August 2009 rating decision, denying an increased rating claim in excess of 10 percent for asthma, denying a TDIU, and denying increased ratings for his knee disabilities. The AOJ’s March 2013 rating decision recharacterized the right knee disability as right TKA, and assigned a 100 percent evaluation from July 8, 2009 to August 30, 2010, and an evaluation of 30 percent evaluation from August 31, 2010; and terminated separate evaluations of right knee instability and status post arthroscopic medial meniscectomy with DJD from July 8, 2009, the date of a knee replacement. So, increased rating claims remain pending for right knee status-post arthroscopic medial meniscectomy with DJD and right knee instability for the period prior to July 8, 2009. Further, the Board notes that Diagnostic Code (DC) 5055 does not contemplate instability and therefore, the law provides for separate ratings under DCs 5055 and 5257. 38 C.F.R. §§ 4.14, 4.71(a). Accordingly, disability ratings under both DCs would not constitute pyramiding. Thus, the Board also considers whether the Veteran is also entitled to a separate compensable rating for right knee instability from August 31, 2010. The March 2013 rating decision also increased the Veteran’s asthma rating from 10 percent to 30 percent, effective April 9, 2012, and an October 2016 rating decision awarded a still higher 50 rating evaluation, effective July 29, 2014, and recharacterized the disability as asthma with sleep apnea. In August 2017, the Board remanded the case to the AOJ for additional development and consideration. On remand, a February 2018 rating decision increased the right TKA from 30 percent to 60 percent, effective from August 31, 2010. A September 2020 rating decision increased left knee instability from 10 percent to 20 percent, effective from December 18, 2017. The file is again before the Board for further appellate review. Entitlement to an increased rating for asthma in excess of 10 percent prior to April 9, 2012; and in excess of 30 percent from April 9, 2012, to July 29, 2014; and in excess of 50 percent since July 29, 2014 The Veteran’s asthma was previously assigned staged 10 percent and 30 percent ratings prior to July 29, 2014 under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6602. Then, since July 29, 2014, he was assigned a 50 percent rating under DC 6847 for his disability, recharacterized as asthma to include sleep apnea. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim was filed until VA makes a final decision on the claim. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). In this case, the Board reviews the evidence of record since January 2008, which is one year before the January 2009 increased rating claim was filed. Under the Diagnostic Code 6602, for asthma, a 10 percent rating is assigned for asthma for Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent of predicted value, or the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy. 38 C.F.R. § 4.97, Diagnostic Code 6602. A 30 percent rating is assigned 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 rating is assigned for an 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 3 times per year) course of systemic (oral or parenteral) corticosteroids. A maximum 100 percent rating is assigned under DC 6602 for bronchial asthma with an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. See 38 C.F.R. § 4.97, DC 6602. Increased Rating in Excess of 10 Percent Prior to April 9, 2012 During this period of the appeal, the Board finds there is no competent medical evidence that supports his claim for a rating higher than 10 percent for asthma. There are no relevant VA examinations of his respiratory disability during this portion of the appeal. At a January 2009 VA treatment session, the Veteran reportedly sought an increased disability evaluation for his asthma, however, the VA treating provider only noted that his asthma is stable. VA treatment records do not contain any pulmonary function tests (PFTs) or other indications of supporting an increase in severity of the asthma disability under DC 6602. For instance, a March 2009 VA treatment record assessed his asthma and found his lungs were clear and only commented that he should continue use of his inhaler. Moreover, there are no available lay statements supporting his claim. The Board finds that the overall evidence does not support a rating in excess of 10 percent for the Veteran’s asthma prior to April 9, 2012. Increased Rating in Excess of 30 Percent from April 9, 2012 to July 29, 2014 The most probative evidence during this portion of the appeal comes from the April 9, 2012 VA respiratory examination. At this time, the examiner diagnosed the Veteran with asthma. The April 2012 VA examiner indicated a medical history of required use of inhalational medications, specifically intermittent use of inhalational bronchodilator therapy and daily use of inhalational anti-inflammatory medication. However, he denied that his respiratory disability required use of oral or parenteral corticosteroid medications, use of oral bronchodilators, use of antibiotics, and oxygen therapy. The Veteran reported a history of asthmatic attacks and less than monthly physician visits for care of exacerbations, but no attacks in the past 12 months and no episodes of respiratory failure. The examiner noted that the Veteran’s respiratory condition does not result in cardiopulmonary complications such as cor pulmonale, right ventricular hypertrophy or pulmonary hypertension. Single breath method (DLCO) testing was not indicated for the Veteran’s condition, and thus, not performed. The PFT results of the April 2012 VA examination, post-bronchodilator, indicated FEV-1 of 91 percent predicted and FEV-1/FVC of 77 percent. The examiner determined that FEV-1 percentage is the most accurate test result to use here, which was 94 percent predicted, post-bronchodilator. Per 38 C.F.R. § 4.96(d)(5), when evaluating based on pulmonary function tests (PFTs), the rater should use post-bronchodilator results unless poorer than the pre-bronchodilator results. Such PFT results did not approach the criteria for the next higher rating under DC 6602. As previously noted, a higher 60 percent rating under DC 6602 requires an 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 3 times per year) course of systemic (oral or parenteral) corticosteroids. However, there is no probative medical or lay evidence that the Veteran met any of these criteria. Thus, the Board finds that the overall evidence does not support a rating in excess of 30 percent for the Veteran’s asthma from April 9, 2012 to July 29, 2014. Increased Rating in Excess of 50 Percent since July 29, 2014 The AOJ recharacterized the Veteran’s disability as asthma to include sleep apnea, and assigned a 50 percent rating under DC 6847, for sleep apnea syndrome, from July 29, 2014. In this regard, pursuant to 38 C.F.R. § 4.96(a), ratings under DCs 6600 through 6817 and 6822 through 6847 will not be combined with each other. Rather, 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 evaluation. See also 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Diagnostic Code 6847 provides that a noncompensable (zero percent) rating is assigned when sleep apnea is asymptomatic but with documented sleep disorder breathing. A 30 percent disability rating requires persistent daytime hypersomnolence. A 50 percent disability rating contemplates sleep apnea that requires use of a breathing assistance device such as a continuous airway pressure (CPAP) machine; and the highest rating of 100 percent is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or where a tracheotomy is required. 38 C.F.R. § 4.97. The Veteran’s July 2016 VA sleep apnea examination, on review of his medical history, noted that he was first diagnosed with obstructive sleep apnea on a sleep study in August 2014 and provided a CPAP machine for daily sleep therapy. The examiner noted a medical history included no continuous medication, but did require a CPAP machine. The examiner found his sleep apnea signs and symptoms were persistent daytime hypersomnolence, easy fatigue and irritability. The examiner also opined that the Veteran’s obstructive sleep apnea was at least as likely as not proximately due to or the result of the service-connected asthma. In this case, the Board notes a thorough review of the competent evidence of record, including VA treatment records, does not reflect the Veteran has chronic respiratory failure, nor is there evidence of cor pulmonale. Further, the record does not reflect a tracheotomy has been required due to his sleep apnea. Consequently, he is not entitled to rating in excess of 60 percent under DC 6847 during this period of the appeal. Moreover, after review of the competent evidence of record, the Board finds that the weight of the evidence is against finding an even higher rating than 50 percent under other applicable criteria under 38 C.F.R. § 4.97, particularly DC 6602 for asthma. At the March 2015 VA respiratory examination, the Veteran reported shortness of breath with minimal exertion. The Veteran’s medical history required the use of oral or parenteral corticosteroid medications, noted as Spiriva. The Veteran required the daily use of inhalational bronchodilator therapy and daily use of inhalational anti-inflammatory medication. The Veteran required the daily use of oral bronchodilators. He did not require the use of antibiotics or oxygen therapy. The Veteran reported a history of asthmatic attacks and less frequently than monthly physician visits for care of exacerbations, but no attacks in the past 12 months and no episodes of respiratory failure. Single breath method (DLCO) testing was not indicated for the Veteran’s condition, and thus, not performed. The PFT results of the March 2015 VA examination, post-bronchodilator, indicated FEV-1 of 83 percent predicted, FEV-1 of 86 percent predicted. The examiner determined that FEV-1/FVC, of 76 percent, was the most accurate test result to use. The examiner found the Veteran’s asthma had a functional impact of diminished exercise tolerance capacity which undermines the Veteran’s ability to perform physical activities of employment. The Board’s August 2017 remand observed that the March 2015 VA examiner did not indicate that the use of Spiriva constituted intermittent, systemic, or daily use of high dose corticosteroids or immuno-suppressive medications, for a 60 or 100 percent rating under DC 6602. Thus, the Board directed the AOJ to schedule another VA examination to assess the current nature and severity of the Veteran’s asthma disability, and for the examiner to specifically address whether the past and/or current use of Spiriva is the equivalent of a corticosteroid or constitutes an immuno-suppressive medication. On remand, the AOJ arranged for a VA respiratory conditions examination in January 2018, which continued to diagnose the Veteran with asthma. The examiner specifically found the respiratory condition did not require the use of oral or parenteral corticosteroid medications, despite requiring the daily use of inhalational bronchodilator therapy and other inhaled medications. The Veteran also required quarterly use of antibiotics. The PFT results of the January 2018 VA examination, post-bronchodilator, indicated FEV-1 of 95 percent predicted, FEV-1 of 92 percent predicted. The examiner determined that FEV-1/FVC, of 97 percent, was the most accurate test result to use. The examiner found the Veteran’s asthma had no functional impact. The January 2018 examiner specifically clarified, in response to the Board’s remand, that “Spiriva is a bronchodilator. It is not a steroid or anti-inflammatory inhaler.” In this regard, the Board is satisfied there was compliance with the remand directive. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of the principles of Stegall v. West, 11 Vet. App. 268, 271 (1998), when the examiner made the ultimate determination required by remand). Although the January 2018 VA examiner found the Veteran had at least monthly physician visits for required care of exacerbations over the past 12 months, in the same section of the report, the examiner provided a conflicting finding of only bimonthly Primary Care evaluations for shortness of breath. So, the Board provides no probative value to these unclear findings, particularly when the prior March 2015 VA examiner found he had less frequently than monthly physician visits for care of exacerbations, with no attacks in the past 12 months and no episodes of respiratory failure. A review of VA treatment records also does not show findings supportive of a higher rating for his asthma, with no indication that the Veteran sought at least monthly visits to a physician for required care of exacerbations. Rather, for instance, a November 2015 VA treatment note indicated his asthma was stable with no recent exacerbations and no shortness of breath. An August 2017 VA treatment note also indicated that the Veteran’s asthma was stable and with no shortness of breath. The overall medical findings of the March 2015 and January 2018 VA respiratory examinations (i.e., FEV-1/FVC of 76 percent (March 2015) and 97 percent (January 2018), and daily inhalational bronchodilator therapy (e.g., Spiriva)) are consistent with the criteria for the 30 percent rating and weigh against finding that a higher rating is warranted under DC 6602. Thus, the Veteran’s asthma does not meet the criteria for a higher 60 percent rating. Notably, the evidence does not show the Veteran manifested the criteria for a higher 60 percent under DC 6602, of an 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 3 times per year) course of systemic (oral or parenteral) corticosteroids. Similarly, there is no evidence that the Veteran’s asthma manifested an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications, such as are necessary for the maximum 100 percent rating under DC 6602. See 38 C.F.R. § 4.97, DC 6602. The Board concludes the evidence does not support the claim for an increased rating during this period of the appeal and there is no doubt to be otherwise resolved. As such, the appeal is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for left knee arthritis. 2. Entitlement to a rating in excess of 10 percent for left knee instability prior to December 18, 2017; and in excess of 20 percent since December 18, 2017. 3. Entitlement to a rating in excess of 60 percent for right total knee arthroplasty (TKA) from August 31, 2010 to the present. In August 2017, the Board remanded the bilateral knee claims for the AOJ to arrange another VA examination in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). On remand, the January 2018 and August 2018 VA examinations, which were conducted by the same VA physician, did note pain with weightbearing for his knees, but without specifying any resulting limitation of motion. The January 2018 and August 2018 VA examinations also noted pain and lack of endurance on flare-ups cause functional loss, but were unable to describe the functional loss in terms of range of motion. Both examinations also indicated bilaterally less movement than normal due to ankylosis, adhesions, swelling, deformity, disturbance of locomotion, but did not specify the resulting limitation of motion for either knee. The August 2018 VA examination report did not provide any response on instability or functional impact. The January 2018 VA examination report also remarked, “increased severity,” without explanation. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). So, the Board finds another VA examination on the severity of his knees is necessary. 4. Entitlement to a rating in excess of 10 percent prior to July 8, 2009, for right knee, status post arthroscopic medial meniscectomy with degenerative joint disease (DJD). 5. Entitlement to a rating in excess of 10 percent for right knee instability prior to July 8, 2009. The issues for increased ratings for a right knee disability prior to July 8, 2009 were previously remanded by the Board, yet not addressed by any subsequent AOJ readjudication, including the September 2020 SSOC. A remand by the Board confers on a Veteran the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Presently, the Board remands these issues for the AOJ to address in another SSOC, including any appropriate development. 6. Entitlement to a TDIU. The TDIU issue is inextricably intertwined with the increased rating claims for the Veteran’s bilateral knee disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his left and right knee disabilities. The examiner must specifically test both passive and active range of motion for the Veteran’s knee conditions, in weight-bearing and non-weight-bearing, indicating on both right and left knee where any pain begins. If the examiner finds that active and passive range of motion cannot be tested, explain why, with a complete rationale. The examination must also include an opinion on the issue of functional loss with repeated use over time, or adequately explain why an opinion cannot be provided. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must also elicit and consider the Veteran’s lay statements regarding any other functional loss and knee instability. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. To the extent possible, the examiner should identify any symptoms and functional impairments due to his knee disabilities alone and discuss the effect of the Veteran’s knee disabilities on any occupational functioning and activities of daily living. 2. Then readjudicate the claims. If these claims are not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and allow an appropriate time for response. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.