Citation Nr: 21022832
Decision Date: 04/19/21	Archive Date: 04/19/21

DOCKET NO. 13-05 705
DATE: April 19, 2021

REMANDED

Entitlement to an evaluation in excess of 30 percent for bronchial asthma prior to October 16, 2020 is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1979 to September 1980.  This matter comes before the Board of Veterans’ Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In September 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

In August 2019, the Board issued a decision that denied entitlement to a rating in excess of 30 percent for bronchial asthma.  The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (CAVC).  In an August 2020 Order, pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the August 2019 decision for compliance with the instructions in the JMR.

1. Entitlement to an evaluation in excess of 30 percent for bronchial asthma prior to October 16, 2020 is remanded.

The Board finds that a remand is needed to obtain a medical opinion addressing inconsistencies in the medical record as it pertains to evaluating the Veteran’s asthma. In this regard, the Veteran reported to the 2020 examiner that he had two asthma attacks with episodes of respiratory failure in past year, yet reported he did not have any physician visits for required care of exacerbations. Thus, it is unclear what the basis for the report of respiratory failure actually is. 

Moreover, the 2020 VA examiner indicated that FVC results most accurately reflected the Veteran’s level of disability, while the 2017 VA examiner found      that FEV1/FVC most accurately reflected the Veteran’s level of disability. The Board notes that the rating schedule utilizes FEV1 or FEV1/FVC for rating asthma, not FVC. Further, it appears the 2020 examiner used the “ratio” listed on the November 2019 pulmonary function test (PFT) of “0.63” as being 0.63 percent   for FEV1/FVC, rather than 63 percent (as would be the common understanding of 0.63 and as would be consistent with the mathematical computation of FEV1/FVC utilized on the 2010 PFT). Clarification is needed. 

Updated VA treatment records should also be requested.

The matters are REMANDED for the following action:

1. Obtain updated VA treatment records and associate them with the claims file.

2. Send the claims file to a physician to obtain an addendum opinion concerning the asthma claim. If a  new examination is deemed necessary to respond to     the questions presented, one should be scheduled. The examiner should review the claims file and should respond to the following:

a.	Please review the November 2019 PFT results and indicate whether the “ratio” of “0.63” is   the value for FEV1/FVC, and if so, whether   the value is 0.63 percent or 63 percent.

b.	Please state which PFT value (FEV1 versus FEV1/FVC) most accurately reflects the Veteran’s level of disability during the period from 2010 to the present. The examiner should explain the basis for the conclusion reached. 

c.	Does the medical evidence reflect the Veteran has, in fact, had episodes of respiratory failure due to his asthma since October 2019? If so,   the examiner should indicate when.

3. If the claim remains denied, issue a supplemental statement of the case. 

 

 

K. A. BANFIELD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Lance, 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.