Citation Nr: 21015402 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 06-23 003 DATE: March 17, 2021 ORDER Prior to September 27, 2006, entitlement to a rating higher than 30 percent for service-connected asthma is denied. On and after September 27, 2006 to July 1, 2009, entitlement to a rating higher than 60 percent for service-connected asthma is denied. As the reduction from a 60 percent disability rating to a 30 percent disability rating for service-connected asthma, effective July 1, 2009, was proper, restoration of the 60 percent disability rating as of such date is denied. Entitlement to a rating higher than 30 percent after July 1, 2009 is denied. FINDINGS OF FACT 1. Prior to September 27, 2006, the Veteran’s asthma does not result in 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. 2. From September 27, 2006 to July 1, 2009, the Veteran’s asthma did not result in Forced Expiratory Volume (FEV-1) less than 40 percent predicted, or; FEV-1/Forced Vital Capacity (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 immuno-suppressive medications. 3. There was clear and unmistakable error (CUE) in the December 2006 rating decision assigning a 60 percent disability rating for service-connected asthma. 4. After July 1, 2009, the Veteran’s asthma does not result in 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. CONCLUSIONS OF LAW 1. Prior to September 27, 2006, the criteria for a disability rating in excess of 30 percent for bronchial asthma are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.96, 4.97, Diagnostic Code 6602 (effective prior to October 7, 1996); 38 C.F.R. § 4.97, Diagnostic Code 6602 (effective on and subsequent to October 7, 1996) (2016). 2. From September 27, 2006 to July 1, 2009, the criteria for a disability rating in excess of 60 percent for bronchial asthma are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.96, 4.97, Diagnostic Code 6602 (effective prior to October 7, 1996); 38 C.F.R. § 4.97, Diagnostic Code 6602 (effective on and subsequent to October 7, 1996) (2016). 3. A December 2006 rating decision assigning a 60 percent disability rating for service-connected asthma contained CUE and the 60 percent evaluation is not restored. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.97, Diagnostic Code 6602. 4. After July 1, 2009, the criteria for a disability rating in excess of 30 percent for bronchial asthma are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.96, 4.97, Diagnostic Code 6602 (effective prior to October 7, 1996); 38 C.F.R. § 4.97, Diagnostic Code 6602 (effective on and subsequent to October 7, 1996) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to September 1998. The case comes to the Board of Veterans’ Appeals (Board) on appeal from May 2005, December 2006, December 2008, and March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2010, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. This case was remanded multiple times, the most recent in July 2020. There has been compliance with the remands as the RO adjudicated the issue of clear nad unmistakable error in a prior rating decision. Accordingly, the Board may proceed to adjudicate the issue on appeal. 1. Entitlement to a rating higher than 30 percent prior to September 27, 2006 is denied. 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 (2017). 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 (2017). 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 (2017). 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 (2017). 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 (2017). 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). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, 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). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. As the Veteran filed an increased rating claim on February 16, 2005, the appellate period began on February 16, 2004. The Veteran contends that he is entitled to an increased disability rating in excess of 30 percent for asthma. The applicable DC for bronchial asthma is DC 6602. 38 C.F.R. § 4.97. Under DC 6602, a 30 percent disability rating is warranted if the FEV-1 is of 56-70 percent predicted; FEV-1/FVC is of 56-70 percent predicted; daily inhalational or oral bronchodilator therapy; or, daily inhalational anti-inflammatory medication is required. A 60 percent disability rating is warranted if the FEV-1 is of 40-55 percent predicted; FEV-1/FVC is of 40-55 percent predicted; at least monthly visits to a physician is required for care of exacerbations; or, intermittent (at least three times per year) courses of systemic (oral or parenteral) corticosteroids are required. A 100 percent disability rating is warranted if the FEV-1 is 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 addition, the Board notes that, when evaluating based on PFTs, VA is to use post-bronchodilator results unless the post-bronchodilator results were poorer than pre-bronchodilator results, in which case the latter should be used instead. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different PFTs (e.g., FEV-1, FVC, or FEV-1/FVC) such that the evaluation would be different depending on which test was used, the Board must use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). The Board finds that the rating criteria do contemplate the use of medications as they are cited in the regulations and recognize the effects of bronchodilators and inhalational therapy. February 2005 VA treatment records noted that the Veteran was prescribed Flunisolide inhalant and Albuterol inhalant to treat his asthma. He stated his asthma flared last month so he started using Aerobid again. The Veteran was provided with a VA examination to evaluate his asthma in April 2005. The examiner noted that the Veteran was using Albuterol and Combivent inhalers to treat his asthma symptoms. The Veteran’s FEV-1 was 97 percent predicted. In a June 2006 correspondence, the Veteran stated that his breathing was a daily struggle and that he felt he was fighting for breath most days. In assessing the evidence below, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms of his asthma. In that regard, the Board finds his lay statements competent and credible as well. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In contemplating the above, the Board finds the preponderance of the evidence is against a disability rating in excess of 30 percent for the Veteran’s asthma during this period. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran stated that his asthma had worsened in the June 2006 correspondence. The VA examiner confirmed the Veteran used inhalants such as Albuterol and Combivent and VA treatment records noted that the Veteran had also used a Flunisolide inhalant for treatment. However, there is no evidence that the Veteran required the use of systemic corticosteroids versus inhaled, which is not throughout the body. A PFT indicated that the Veteran’s FEV-1 was predicted at 97 percent, much higher than the 40-55 percent predicted required for a 60 percent evaluation. The VA examiner determined there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to his asthma. Furthermore, there is no evidence of record showing the Veteran required at least monthly visits to a physician due to exacerbations of his asthma. The Board notes that the Veteran stated in a November 2007 and January 2008 correspondence that he had been taking Azmacort, a corticosteroid, for several years until 2006 and therefore he was entitled to a higher evaluation for that period. July 2000 VA treatment records confirm that the Veteran was taking Azmacort to treat his asthma however, there is no indication past this date that the Veteran was still taking Azmacort. No VA examinations or VA medical records indicate that the Veteran continued to be prescribed Azmacort. March 2009 private treatment records also contain a statement from the Veteran’s private treating physician in which he found that when taken at the proper dosages, Azmacort and Asmanex do not have the same effects as systemic corticosteroids. As such, the Board finds that Azmacort is not classified as a systemic corticosteroid and the Veteran is not entitled to a higher evaluation for this period. 2. Entitlement to a rating higher than 60 percent from September 27, 2006, to July 1, 2009 is denied. The Veteran contends he is entitled to a 100 percent rating for his service-connected asthma during this period. The Veteran is currently rated at 60 percent. The Veteran underwent a VA examination to evaluate his asthma in September 2006. The examiner noted that the Veteran was currently utilizing an Asmanex inhaler and an Albuterol inhaler and that the Veteran had not had any incapacitating episodes. The examiner found that the Veteran did not exhibit cor pulmonale, right ventricular hypertrophy, or pulmonary hypertension. He had good breath sounds and normal chest expansion. The examiner also noted that the Veteran’s PFTs were normal. The Veteran’s prebronchodilator FEV-1 was 104 percent predicted and his postbronchodilator FEV-1 was 110 percent predicted. The Veteran’s prebronchodilator FEV-1/FVC was 76 percent predicted and his postbronchodilator FEV-1/FVC was 81 percent predicted. The Veteran was provided with another VA examination in October 2008. The examiner noted that the Veteran denied any visits to receive emergency care for his asthma. The examiner also noted that the Veteran was taking a mometasone inhaler, a montelukast tablet, and an Albuterol inhaler to treat his symptoms. The examiner stated that the Veteran was not on any systemic corticosteroids. The examiner also noted that the Veteran’s PFTs were normal. The Veteran’s prebronchodilator FEV-1 was 104 percent predicted and his postbronchodilator FEV-1 was 107 percent predicted. The Veteran’s prebronchodilator FEV-1/FVC was 79 percent predicted and his postbronchodilator FEV-1/FVC was 81 percent predicted. March 2009 private treatment records noted that the Veteran was utilizing three different inhalers, Asmanex, Foradil, and Proventil, as well as several allergy medications to manage his asthma. These records noted that the Veteran’s PFTs were normal. The Veteran’s prebronchodilator FEV-1 was 121 percent predicted and his prebronchodilator FEV-1/FVC was 99 percent predicted. The evidence shows that the Veteran has not had PFT results consistent with a rating in excess of 60 percent (i.e., FEV-1 and FEV-1/FVC values were all greater than 40 percent). There is also no indication that his asthma required at least monthly visits to a physician for required care of exacerbations or that he experienced more than one attack per week with episodes of respiratory failure. The Veteran himself denied having to seek emergency care for his asthma in the October 2008 VA examination. The October 2008 examiner also determined that there was no daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Based on the preponderance of the evidence, the Board finds the criteria are not met to assign a 100 percent rating for the Veteran's service-connected asthma. 3. As the reduction from a 60 percent disability rating to a 30 percent disability rating for service-connected asthma, effective July 1, 2009, was proper, restoration of the 60 percent disability rating as of such date is denied. By operation of law, a previous rating decision by the RO is binding and will be accepted as correct in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.104 (a), 3.105(a). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The United States Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. 313 (en banc). Turning to the merits of the claim, an evaluation of the propriety of the rating decision issued in March 2009 requires consideration of two separate standards, the standard relating to CUE and the standard governing reduction of benefits. If CUE was not present in the December 1, 2006 rating decision which assigned a 60 percent rating for asthma, then there is no basis for the reduction. If CUE was present in the December 1, 2006 rating decision, the proper procedures governing reduction must be observed because the remedy used to correct the error was reduction. The Board is required to analyze both questions. The Board will first discuss whether there was CUE in the December 1, 2006 rating decision. In that decision, the RO increased the Veteran's disability rating for asthma to a 60 percent rating based on a finding that the Veteran's asthma required the use of a corticosteroid, Asmanex. In December 2008 the Veteran was notified by the AOJ that the 60 percent rating for asthma was proposed to be reduced to a 30 percent rating. The basis of the proposed reduction was not that the Veteran's asthma had improved, but that the previous AOJ had mistakenly classified Asmanex as a systemic corticosteroid. The Board notes that the Veteran submitted a July 2009 e-mail correspondence in which he provided some medical literature that indicated that Asmanex was a corticosteroid. The Veteran noted that Asmanex has been proven to have some systemic corticosteroid effects and that he had been taking more than the FDA approved dosage for several years. The March 2009 private treatment records show, however, that the Veteran’s treating physician stated that when taking Asmanex at the prescribed dose, there were no steroid related systemic effects from inhaled corticosteroids. The physician also noted that the Veteran had been taking Asmanex at the prescribed dose. The September 2006 VA examination noted that the Veteran was taking Asmanex at 220 mcg with no side effects and a good response. There is also a section in the Asmanex medical literature labeled “Transferring Patients from Systemic Corticosteroid Therapy,” which indicates that Asmanex is in a category separate from systemic corticosteroids. The Board finds that the evidence supports a finding that Asmanex is an inhaled corticosteroid but is not classified as a systemic corticosteroid for rating purposes. The evidence does not demonstrate that the Veteran is taking the medication at a dosage which would cause steroid related systemic effects. Therefore, the Board finds that the December 2006 rating decision did contain CUE and the proposed reduction of the disability rating for asthma to 30 percent was proper. As the reduction was proper the Board must next determine whether the reduction procedures were adequately followed. In rating reductions, when VA contemplates reducing an evaluation for a service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105 (e). As enumerated in 38 C.F.R. § 3.105 (e), where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. In addition, the beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The beneficiary also will receive notification that he or she will have an opportunity for a pre-determination hearing. 38 C.F.R. § 3.105(i). Thereafter, a final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. §§ 3.105(e); 3.500(r). In December 2008 the reduction of the disability rating for service-connected asthma due to CUE was proposed in a rating decision by the AOJ. The Veteran was notified at his latest address of record in January 2009. The Veteran did not respond, and no additional evidence was provided. In March 2009 the AOJ issued the rating decision reducing the Veteran's disability rating for asthma. Thus, the Board finds that VA has satisfied the specific procedural requirements applicable to the Veteran's rating reductions. Given the above findings regarding the propriety of the reduction based on CUE the Board finds the reduction was warranted. 4. Entitlement to a rating higher than 30 percent after July 1, 2009 is denied. The Veteran was provided with a VA examination in June 2011. The examiner noted that the Veteran also sought treatment for allergies and was utilizing Albuterol, Cetirizine, and Flunisolide. It was also noted that the Veteran’s treatment included Formoterol and Mometasone. The Veteran complained of daily exacerbations of his asthma, wheezing, and coughing with sputum. The examiner noted that there was a systemic corticosteroid on file for the Veteran, Methylprednisolone, but stated that this medication was not utilized at least three times per year. The examiner also found that the Veteran was not on daily high dose systemic corticosteroids. The Veteran’s prebronchodilator FEV-1 was 102 percent predicted and his postbronchodilator FEV-1 was 115 percent predicted. The Veteran’s prebronchodilator FEV-1/FVC was 79 percent predicted and his postbronchodilator FEV-1/FVC was 81 percent predicted. The Veteran underwent another VA examination in February 2013. The examiner noted that the Veteran had intermittent shortness of breath and experienced tightening in the chest about five times a year. The examiner listed the Veteran’s medications as Albuterol, Mometasone, and Formoterol. The examiner determined that the Veteran’s condition did not require him to use systemic corticosteroids. The Veteran provided PFT results that he had received from the Dallas VA in September 2012 to the examiner. The Veteran’s prebronchodilator FEV-1 was 61 percent predicted and his postbronchodilator FEV-1 was 60 percent predicted. The Veteran had another VA examination to evaluate his asthma in December 2013. The examiner determined that the Veteran did require intermittent courses of systemic corticosteroids, around four or more times per year. The examiner also noted that the Veteran asthma exacerbations that required physician visits less than monthly. The Veteran’s prebronchodilator FEV-1 was 84 percent predicted and his postbronchodilator FEV-1 was 93 percent predicted. The Veteran’s prebronchodilator FEV-1/FVC was 101 percent predicted and his postbronchodilator FEV-1/FVC was 106 percent predicted. The Veteran was provided with a final VA examination in February 2020. The examiner listed the Veteran’s medications as Symbicort, Proair, Zyrtec, Flonase, and Hydroxyzine. The examiner determined that the Veteran did not require the use of systemic corticosteroids. The examiner found that the Veteran had physician care to address his asthma exacerbations, but the visits had been less than monthly. The few times he sought physician care, the Veteran received oral steroids or a steroid injection. The Veteran’s prebronchodilator FEV-1 was 136 percent predicted and his postbronchodilator FEV-1 was 148 percent predicted. The Veteran’s prebronchodilator FEV-1/FVC was 109 percent predicted and his postbronchodilator FEV-1/FVC was 104 percent predicted. In contemplating the above, the Board finds the preponderance of the evidence is against a disability rating in excess of 30 percent for the Veteran’s asthma during this period. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran reported shortness of breath and exacerbations of his asthma; however, all VA examinations indicated that at worst, the Veteran’s FEV-1 was predicted at 60 percent and FEV-1/FVC was predicted at 81 percent. These percentages are far higher than the 40-55 percent mandated by the rating criteria for a 60 percent evaluation. There is also no consistent evidence that the Veteran was taking systemic corticosteroids of at least three courses per year. In the June 2011 VA examination, the examiner stated that the only systemic corticosteroid prescribed to the Veteran for his asthma was Methylprednisolone. The examiner stated that the Veteran was not utilizing this systemic corticosteroid in courses of at least three times per year. In the February 2013 VA examination, the examiner determined that the Veteran was not using systemic corticosteroids to treat his asthma. In the December 2013 VA examination, the examiner determined that the Veteran was taking systemic corticosteroids in courses of four or more times a year. The Board notes, however, that unlike all the previous VA examiners this examiner did not provide the Veteran’s current medication regimen and did not state what systemic corticosteroid the Veteran was using. Review of the VA treatment records does not indicate any changes in the Veteran’s medication regimen that would indicate the prescription of a systemic corticosteroid of three or more courses for the year. As such, the Board provides this examination less probative weight in determining the Veteran’s evaluation for this time period. Furthermore, the February 2020 VA examiner determined that the Veteran did not utilize systemic corticosteroids to treat his asthma. As such, the Board finds that the preponderance of the evidence indicates that the Veteran was not treated with systemic corticosteroids in a manner that would entitle him to a 60 percent evaluation. Finally, the Board notes that no VA examiner determined that the Veteran required monthly physician care to manage his asthma exacerbations. Based on the preponderance of the evidence, the Board finds the criteria are not met to assign increased ratings for the Veteran's service-connected asthma. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is inapplicable, and the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board AK 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.