Citation Nr: 21014960 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-30 735 DATE: March 16, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for asthma is denied. FINDING OF FACT At worst, the Veteran’s asthma results in an FEV-1 of 68 percent predicted. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for the Veteran’s asthma have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1-4.14, 4.96, 4.97, Diagnostic Code 6605 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from October 2012 to February 2013. In October 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. The Veteran submitted his claims on May22, 2013, as a fully developed claim (FDC) pursuant to VA’s program to expedite VA claims. Under this framework, a claim is submitted in a “fully developed” status, limiting the need for further development of the claim by VA. VA did not accept the Veteran’s claim as a FDC because one of his claims required specialized processing; however, the notice that accompanies the FDC form informs the Veteran of what evidence is required to substantiate a claim and VA’s respective duties for obtaining evidence. See VA Form 21-526EZ The evidence of record includes the Veteran’s VA treatment records and private medical records and the Veteran has not referred to any additional, unobtained, relevant, available evidence. Consequently, all relevant, identified, and available evidence has been obtained. The Veteran underwent a VA examination in January 2014, which was the basis of the Board’s grant of the 30 percent rating. The Veteran underwent another VA examination in October 2019. In its July 2020 remand, the Board identified areas of the examination that needed to be clarified prior to deciding whether a rating higher than 30 percent was warranted. The Board remanded the claim so an addendum opinion could answer the question of why post-bronchodilator results were not completed during the Veteran’s pulmonary function test (PFT) and to address a lay statement that he had been prescribed medication for asthma. In November 2020, an addendum opinion was provided that responded to the Board’s remand directives, as discussed below. There was substantial compliance with the Board’s July 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2020). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2020). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection for asthma in February 2013. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s bronchial asthma is currently rated under Diagnostic Code 6602, which is evaluated under the General Rating Formula for the diseases of the trachea and bronchi. 38 C.F.R. § 4.97 (2020). Under Diagnostic Code 6602, a 30 percent 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 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, 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; required daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. Id. In applying the criteria under Diagnostic Code 6602, post-bronchodilator studies are required when pulmonary function testing (PFT) is conducted for disability rating purposes, except in instances where the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96 (2020). In those cases, the VA is to use pre bronchodilator values. Id. If the FEV-1 and FVC values are both greater than 100 percent, then VA may not assign a compensable disability rating based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96(d)(7) (2020). The Veteran’s first VA examination was in January 2014. The examiner noted that his condition did not require the use of medication or antibiotics. He also had not experienced any asthma attacks or episodes of respiratory failure in the past year. The examiner noted that the PFT results accurately reflected the Veteran’s current pulmonary function. The PFT results from his January 2013 test revealed FEV-1 with a 32 percent change and moderate obstructive defect. In January 2014, the Veteran underwent another PFT test. The results of his pre bronchodilator PFTs were FVC at 65 percent, FEV-1 at 70 percent, and FEV 1/FVC at 86 percent. The results of his post bronchodilator PFTs showed FVC at 60 percent, FEV-1 at 68 percent, and FEV-1/FVC at 90 percent. The doctor noted there was no airflow obstruction and no significant change in FEV-1 or FVC after bronchodilator challenge. He also noted the Veteran had moderate restrictive defect. The Veteran’s next VA examination was in October 2019. The Veteran did not require medication, an inhaler, oral bronchodilators, or antibiotics. He did not experience any episodes of respiratory failure in the past year or need to see a doctor for required care of exacerbations. The examination only provided his pre bronchodilator results. His results were FVC at 74 percent, FEV-1 at 75 percent, and FEV 1/FVC at 101 percent. The examiner noted that the FEV-1/FVC test result most accurately reflected his level of disability. The examiner rated the Veteran’s condition as mild. In a November 2020 addendum opinion, a VA physician explained why the October 2019 PFT did not include post-bronchodilator findings. The physician noted that the FEV-1/FVC was 85 percent, which is normal, and that [t]he first step when interpreting PFT results is to determine if the FEV1/FVC ratio is low, indicating an obstructive defect. [T]he National Asthma Education Prevention Program guideline says that a ratio of less than 85 [percent] is consistent with an obstructive defect as long as the patient has symptoms consistent with obstructive lung disease. But as the claimant had normal value of FEV-1/FVC on pre-bronchodilator testing which indicates less likely exist[e]nce of obstructive defect and it will not show any change ater prost bronchodilator testing/bronchodilator challenge[.] Because the Veteran’s FEV-1/FVV was 85 percent, the physician concluded that post-bronchodilator testing wasn’t necessary. The examiner also concluded that the Veteran’s asthma was mild. They stated that the October 2019 examination showed that the Veteran was not on medications at the time of the examination and there was no history of asthma attacks or exacerbation of asthma in the previous year. On review of the medical records, there was no other supportive evidence indicating that the Veteran developed significant symptoms or asthma attacks “… or required or was treated with any medications for asthma.” In response to the Board’s July 2020 remand directive, the VA physician explained that the Veteran was on two inhalers at the time of separation from service and that at the time of his January 2014 examination ,he was not on any medications. The examiner concluded that the Veteran’s asthma symptoms were “stable or mild after he discharged from the military service and did [no]t require any additional medications.” Based on the evidence of record the Board finds that a 30 percent rating is warranted for the Veteran’s disability. At no point during the appeal period was the Veteran’s pre or post bronchodilator tests results for his FEV-1 of 40 to 55 percent predicted, or for his FEV-1/FVC of 40 to 55 percent, as required by the 60 percent rating. During the appeal period the Veteran’s worst result was his January 2014 PFT test which showed his post bronchodilator results as FEV-1 at 68 percent. This test result is contemplated by the 30 percent rating. Furthermore, he did not require 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. As noted by both VA examiners, the Veteran’s disability did not require courses of medication at least three times per year. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's asthma most closely approximates the 30 percent rating currently assigned under the applicable Diagnostic Code. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.