Citation Nr: 21015130 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-28 039 DATE: March 16, 2021 ORDER Entitlement to an initial disability rating higher than 10 percent for asthma prior to February 2013, and higher than 30 percent, thereafter, is denied. Entitlement to service connection for heart arrhythmia, to include as secondary to service-connected asthma, is granted. FINDINGS OF FACT 1. Prior to February 1, 2013, the preponderance of the evidence does not demonstrate that the Veteran’s FEV-1 is 56 to 70 percent predicted; FEV-1/FVC is 56 to 70 percent; or there is daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. 2. After February 1, 2013 the preponderance of the evidence does not demonstrate that the FEV-1 is 40 to 55 percent predicted; 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. 3. The preponderance of the evidence shows the Veteran’s heart arrhythmia is secondary to her service-connected asthma. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating higher than 10 percent for asthma prior to February 2013, and an evaluation higher than 30 percent, thereafter, have not been met. 38 U.S.C. § 1155, 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.97, DC 6602. 2. The criteria for entitlement to service connection for heart arrhythmia, as secondary to service-connected asthma, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 26, 1997 to April 23, 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision and November 2012 notification letter. The Veteran testified at a May 2019 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In an April 2016 rating decision, the RO increased the rating of the Veteran’s asthma from 10 percent to 30 percent effective March 11, 2016. In a May 2018 rating decision, the RO changed the effective date of the 30 percent evaluation to February 1, 2013. This is not a complete grant as the Veteran is presumed to seek the maximum available benefit for a disability. As such, the claim is still on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an initial disability rating higher than 10 percent for asthma prior to February 2013, and an evaluation higher than 30 percent, thereafter, is denied. The Veteran contends that she is entitled to a 30 percent rating prior to 2013 as she has been on bronchodilators since 1997 and that she started using Azmacort twice a day, and Proventil as her rescue inhaler. The Veteran further contends that her medicine has been changed through her course of going to the VA and that she has been prescribed steroids entitling her to a rating of 60 percent. See May 2019 Hearing. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Staged ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s asthma is currently rated under DC 6602. This diagnostic code provides for a 30 percent disability where pulmonary function tests (PFTs) show any of the following: FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent; or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. A 60 percent disability evaluation is warranted where PFTs show any of the following: FEV-1 of 40 to 55 percent predicted, 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 where PFTs show any of the following: FEV-1 less than 40 percent predicted, FEV-/FVC less than 40 percent; or more than one attack per week with episodes of respiratory failure, or where the use of systemic high dose corticosteroids or immuno-suppressive medications are required on a daily basis. 38 C.F.R. § 4.97, DC 6602. In December 1997 the Veteran’s private physician provided a letter noting the Veteran had been on Azmacort, two puffs p.o. bid and Proventil metered dose inhaler. The Board notes this time period is before the Veteran filed her claim for service connection. In May 2012 the Veteran was first afforded a VA respiratory examination. The examiner diagnosed the Veteran with asthma, noting the Veteran has current symptoms of tachycardia, arrhythmias and shortness of breath even while at rest. The examiner also noted shortness of breath with mild exertion. At the time, the Veteran did not report a history of asthmatic attacks, and did not have any physician visits for required care of exacerbations. The Veteran reported the use of inhalational bronchodilator therapy on an intermittent basis with no episodes of respiratory failure. The Veteran did not report the use of oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics or outpatient oxygen therapy. PFT revealed pre-bronchodilator results of FVC 83% predicted and FEV-1 78% predicted. Post bronchodilator results were 85 % FVC and 87% FEV-1. VAMC treatment records reflect a prescription for anti-inflammatory and bronchodilator oral inhalers for daily use beginning on February 1, 2013. The Veteran was next afforded a VA respiratory examination in March 2016. The Veteran reported a visit to the ER in September 2014 for mild asthma exacerbation after she ran out of her medication. The Veteran reported that she is now on nebulizer and inhalers daily, with no hospitalizations. The Veteran’s asthma did not require the use of oral or parenteral corticosteroid medications, antibiotics, or outpatient oxygen therapy for her condition. The Veteran reported the use of inhalational bronchodilator therapy on a daily basis. PFT revealed pre-bronchodilator results of FVC 79% predicted and FEV-1 75% predicted. Post bronchodilator results were 81 % FVC and 82% FEV-1. In December 2018 the Veteran underwent a VA respiratory examination. The examiner diagnosed the veteran with asthma and noted the condition has worsened, however no change to the service-connected diagnosis and no additional diagnoses were rendered. The examiner noted current symptoms of shortness of breath on moderate exertion, and noted the treatments of Spiriva, Albuterol as needed. The Veteran reported using an anticholinergic, an inhaled medication on a daily basis. The examiner noted the Veteran’s respiratory condition required the use of an oral bronchodilator on an intermittent basis. The Veteran did not report the use of oral or parenteral corticosteroid medication, antibiotics, or outpatient oxygen therapy. Pulmonary function testing was not performed. In May 2020 the Veteran underwent a VA respiratory examination. The examiner diagnosed the Veteran with asthma, and noted the Veteran has reported worsening asthma symptoms including shortness of breath since onset. The examiner noted the Veteran’s respiratory condition required the use of inhalational bronchodilator therapy on an intermittent basis and the use of other inhaled medications of Tiotropium on a daily basis. The Veteran did not report the use of oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran had not had any asthma attacks with episodes of respiratory failure in the past twelve months, nor did the Veteran have any physician visits for required care of exacerbations. Pulmonary function testing was not performed, due to the risk of infection from the Covid-19 virus pandemic. The examiner noted pulmonary function testing is contraindicated to prevent potential harm to the Veteran. At her May 2019 Board hearing the Veteran testified as to worsening symptoms and increased treatment including the addition of steroids to her medication list. Based on consideration of the foregoing evidence, the Board finds that prior to February 1, 2013, the Veteran’s asthma did not result in FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent; or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. Specifically, as reflected above, prior to February 1, 2013, the Veteran’s PFTs resulted in pre-bronchodilator results of FVC 83% predicted and FEV-1 78% predicted. Post bronchodilator results were 85 % FVC and 87% FEV-1. In addition, the evidence shows during the May 2012 VA respiratory examination, the Veteran reported the use of inhalational bronchodilator therapy on an intermittent basis with no episodes of respiratory failure. In this regard, such findings are consistent with at most, a 10 percent rating under DC 6602. After February 1, 2013, the Veteran’s VA treatment records show budesonide/formoterol inhaler was prescribed for daily use on February 1, 2013. In her March 2016 VA respiratory examination, the Veteran reported the use of inhalational bronchodilator therapy on a daily basis. The Veteran’s PFT revealed pre-bronchodilator results of FVC 79% predicted and FEV-1 75% predicted. Post bronchodilator results were 81 % FVC and 82% FEV-1. In this regard, such PFTs are consistent with at most, a 30 percent rating under DC 6602. Furthermore, the evidence does not show, and the Veteran does not contend, that her asthma required at least monthly visits to a physician for required care of exacerbations. Finally, the evidence does not show that the Veteran’s asthma required intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. While the Veteran’s asthma required daily inhalational bronchodilator therapy and inhalational anti-inflammatory medication, including Spiriva, Budesonide, and Albuterol, she did not require the use of systemic (oral or parenteral) corticosteroids. The Board notes the Veteran was prescribed Budesonide, the generic version of Symbicort, an inhaled anti-inflammatory medication, that is considered a corticosteroid. See Symbicort drug label, FDA, https://www.accessdata.fda.gov/drugsatfda_docs/label/2006/021929lbl.pdf. However, the criteria for a 60 percent rating requires that the use of corticosteroids must be systemic (oral or parenteral). To this end, although the Veteran’s Budesonide is considered a corticosteroid, it is administered through inhalation. Thus, Budesonide is an inhaled steroid and not an oral or parenteral steroid as required under the rating criteria. By its own language, DC 6602 indicates that asthma treated by inhalational therapy alone is rated differently than those requiring non-inhalational, systemic therapy. See LaPointe v. Nicholson, 21 Vet. App. 411 (2006). The U.S. Court of Appeals for Veterans Claims in LaPointe affirmed the Board’s finding that DC 6602 “requires, among other things, the systemic use of oral or parenteral, not inhaled, corticosteroids to qualify for a rating higher than 30 [percent].” See id. Although LaPointe is a non-precedential decision, it may be cited “for any persuasiveness or reasoning it contains.” See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Thus, the Veteran’s use of Budesonide, to treat her asthma does not equate to intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids as specified in the 60 percent rating criteria under DC 6602. In short, the Veteran's symptoms, while meeting the 30 percent disability level after February 1, 2013, has not more nearly approximated the next-higher disability level. The Board notes the Veteran’s symptoms and is sympathetic to her condition. However, the rating schedule specifically excludes all subjective assessment criteria, such as self-reported symptoms, in favor of PFTs and other objective criteria in order to ensure consistent ratings. 67 Fed. Reg. 54394 (Aug. 22, 2002) (proposed rule). Therefore, the complete and comprehensive signs and symptoms of the Veteran’s asthma are contemplated by the rating schedule. Accordingly, the Board concludes that the preponderance of the evidence is against an initial disability evaluation in excess of 10 percent prior to February 1, 2013, and against the assignment of a rating in excess of 30 percent thereafter. 2. Entitlement to service connection for heart arrhythmia, to include as secondary to service-connected asthma, is granted. The Veteran contends her heart arrhythmia is secondary to her service-connected asthma. See November 2015 Statement in Support of Claim. In order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (holding that when aggravation of a non-service-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation). In October 2018 the Veteran underwent a heart conditions VA examination where the examiner diagnosed her to have tachycardia. The examiner noted the date of onset as 1997, as well as the Veteran’s symptoms to include rapid heartbeat and shortness of breath. The examiner went on to note the Veteran’s treatment to include cardiac ablation, and acetylsalicylic acid (aspirin). Lastly, the examiner found the claimed condition is at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran’s service-connected condition. The examiner opined the signs of severe asthma include use of accessory muscles of respiration, hyperinflation of the chest, tachypnea, tachycardia, sweating, diaphoresis, obtundation, apprehensive appearance, wheezing, inability to complete sentences and difficulty in lying down. Therefore, the diagnosed tachycardia is at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran’s service-connected asthma condition. The Board notes this examination was conducted in-person, and the examiner’s rationale was supported by the Veteran’s private treatment records from December 1997, which note a correlation between the Veteran’s increased heart rate and asthma. The examiner also cited to the World Allergy Organization on Acute Asthma in support of this rationale. There are no other opinions against the Veteran’s claim. In these circumstances, the Board finds the preponderance of the evidence supports the award of service connection for heart arrhythmia, as secondary to service-connected asthma. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.