Citation Nr: 21021810 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-22 002 DATE: April 14, 2021 REMANDED Entitlement to a rating in excess of 30 percent for bronchial asthma is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served in the United States Army from May 1979 to July 1994. This issue comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 30 percent for bronchial asthma is remanded. Bronchial asthma is rated under DC 6602. Under DC 6602, a 10 percent evaluation is warranted for an FEV-1 of 71 to 80 percent of predicted value, or, an FEV-1/FVC of 71 to 80 percent, or, intermittent inhalational or oral bronchodilator therapy. A 30 percent evaluation is warranted for an FEV-1 of 56 to 70 percent of predicted value, or, an 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 an FEV-1 of 40 to 55 percent of predicted value, or, an 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 maximum 100 percent disability rating is assigned for an FEV-1 less than 40 percent of the predicted value, 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 immune-suppressive medications. 38 C.F.R. § 4.97, DC 6602. Pulmonary Function Test (PFT) results are generally reported before and after the administration of bronchodilator therapy. VA regulations require the use of post-bronchodilator results in determining disability ratings for DC 6600, 6603, 6604, 6825-6833, and 6840-6845, unless post-bronchodilator results are poorer than pre-bronchodilator results. 38 C.F.R. § 4.96 (d)(4). There are no regulations specifying whether pre- or post-bronchodilator results should be used when determining disability ratings under DC 6602. The Veteran contends that he is entitled to a rating in excess of 30 percent for bronchial asthma. In February 2020, the Veteran had a VA examination for his bronchial asthma condition. See February 2020 VA Examination. The examiner determined that the Veteran had an FVC of 70% predicted, an FEV-1 of 71% predicted, and FEV-1/FVC of 104% predicted. At the time of the examination, the examiner noted that the Veteran used oral or parenteral corticosteroid medications specifically listing prednisone, albuterol, symbicort, and a nebulizer machine. The examiner opined that there was no change in the Veteran’s bronchial asthma condition as the Veterans condition is stable on medication. In order to render a decision in this matter, the Board finds that an addendum opinion is necessary. The February 2020 VA examination report indicated the Veteran used oral or parenteral corticosteroids listed as “other” and being prednisone, albuterol and Symbicort but failed to indicate the number of courses the Veteran has taken in the past 12 months. As it is unclear from the available evidence whether he met the three-time threshold for a 60% rating, the Board finds the February 2020 medical opinion inadequate and must remand for clarification. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, during the period on appeal, the Veteran’s medical treatments records show that he has taken other courses of systemic corticosteroids, should be addressed by the examiner on remand. See December 1995 Medical Treatment Records, see also July 1996 Medical Treatment Records, see also August 1996 VA Examination, see also March 2019 Medical Treatment Records. Therefore, a remand is necessary for a medical opinion. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities is remanded. The Veteran contends he is entitled to secondary service connection for his sleep apnea because it was caused or aggravated by his service-connected bronchial asthma. See February 2015 Notice of Disagreement. In April 2015, an opinion for the Veteran’s sleep apnea was completed. The examiner opined that it is less likely as not that the Veteran’s sleep apnea was caused by or was incurred or aggravated by any event in service. See April 2015 VA Opinion. The examiner failed to render an opinion as to whether the Veteran’s sleep apnea was caused or aggravated by his service-connected bronchial asthma. Based on the examiner’s failure to render an opinion as to secondary service connection, the Board must remand this matter for an addendum VA medical opinion to address this. Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311. At the 2020 hearing, the Veteran's representative alleged the Veteran has sleep apnea secondary to sinusitis with rhinitis. An opinion addressing this allegation should be obtained. At the 2020 hearing, the Veteran's spouse testified that she was married to the during active duty and she witnessed times when he would fall asleep and be gasping for air or not breathing. The evidence demonstrates that the Veteran and his spouse were married in 1980 confirming that they were together while the Veteran was on active duty. These competent observations must be addressed in any etiology opinion. The matters are REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 2. Obtain an addendum medical opinion from a medical professional or professionals with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner is to render the following opinions: (a.) Whether the Veteran's prescribed medication of prednisone, albuterol and/or Symbicort demonstrates the Veteran has received treatment at least three times per year of courses of systemic (oral or parenteral) corticosteroids. See December 1995 Medical Treatment Records, see also July 1996 Medical Treatment Records, see also August 1996 VA Examination, see also March 2019 Medical Treatment Records; see also February 2020 VA Examination. (b.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea is the result of active duty service? In rendering this opinion, the examiner must address the observations of the Veteran's spouse that he would fall asleep and being either gasping for air or not breathing which began while the Veteran was on active duty. (c.) If the answer to (b) is negative, then whether it is at least as likely as not that the sleep apnea was caused by the Veteran's service-connected bronchial asthma and/or rhinitis with sinusitis? (d.) If the answer to (c) is negative, then whether it is at least as likely as not that the sleep apnea condition was aggravated beyond its natural progression by the Veteran's service-connected bronchial asthma condition and/or rhinitis with sinusitis? Please explain in detail any opinion provided and the supporting rationale. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.