Citation Nr: 21024691 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-45 819 DATE: April 23, 2021 ORDER Entitlement to service connection for sleep apnea as secondary to the service-connected asthma is granted. Entitlement to an initial rating higher than 30 percent for asthma is denied. FINDINGS OF FACT 1. The diagnosed sleep apnea was aggravated by the service-connected asthma. 2. For the entire period on appeal, the Veteran’s service-connected asthma has not been productive of FEV-1 of 40 to 55 percent predicted, or an FEV-1/FVC ratio of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent courses of systemic corticosteroids. CONCLUSIONS OF LAW 1. The criteria to establish service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). 2. The criteria for an initial rating higher than 30 percent for asthma are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.97, Diagnostic Code (DC) 6602 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to July 1991. In November 2019, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In January 2020, the Board remanded the claim for further development. Subsequently, in a July 2020 rating decision, the RO granted service connection for a lumbar spine disability and associated lumbar radiculopathy; those grants are considered a full grant of the benefits sought on appeal and are no longer in appellate status. The issues of entitlement to service connection for sleep apnea and initial rating higher than 30 percent for asthma have since returned to the Board for further appellate review. Service Connection for Sleep Apnea Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a) (2019). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (b) (2019); Allen v. Brown, 8 Vet. App. 374 (1995). The Veteran asserts that his diagnosed sleep apnea is caused and/or aggravated by his service-connected asthma. The Veteran has a current diagnosis of sleep apnea. See e.g., July 2017 VA examination report; Marshall Health records; Moses Family Medicine records. As to the issue of a nexus, evidence against the claim includes a July 2017 VA examiner’s opinion that the sleep apnea was less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner explained that asthma could not cause sleep apnea and noted other risk factors present in this Veteran; however, the examiner did not address any potential aggravation. The claims file also contains an April 2020 addendum opinion, in which the examiner provided a negative opinion but specifically noted in the rationale that should the Veteran have an acute exacerbation of asthma, it could affect the ability of the lungs to properly oxygenate the blood, and although this was not a direct effect on the sleep apnea, it could increase 02 desaturation, which would add to that caused by CPAP. This effect would not be a permanent change in the status of sleep apnea but could temporarily aggravate the effects of any apneic episodes. In this regard, the Board notes that in Ward v. Wilkie, 31 Vet. App. 233, 239 (2019), the Court held that permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease. Here, the Board finds that the evidence is at least in equipoise as to whether the diagnosed sleep apnea was aggravated by the service-connected asthma. Resolving all doubt in the Veteran’s favor, the Board finds that service connection is warranted. Initial Rating – Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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. 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. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Asthma – Rating Criteria The Veteran’s asthma is currently rated as 30 percent disabling pursuant to 38 C.F.R. § 4.97, DC 6602. Under Diagnostic Code 6602, a 30 percent rating is warranted when pulmonary function tests (PFTs) reveal an FEV-1 of 56 to 70 percent predicted, or; an FEV-1/FVC ratio of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted for an FEV-1 of 40 to 55 percent predicted, or; an FEV-1/FVC ratio 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 rating of 100 percent is warranted for an FEV-1 of less than 40 percent predicted, or; an FEV-1/FVC ratio of 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. Post-bronchodilator results must be applied when evaluating asthma based on PFTs unless post-bronchodilator results are poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5) (emphasis added). Regardless, post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4) (emphasis added). Asthma – Rating Analysis For the reasons expressed below, the Board finds that a rating higher than 30 percent is not warranted. In January 2014, the Veteran underwent a VA respiratory conditions examination, at which time the examiner rendered a diagnosis of asthma. The examiner noted that the Veteran initial spirometry was normal, and a methacholine challenge test was strongly positive, at which time he started treatment for asthma. His symptoms greatly improved. For treatment, he used Symbicort, albuterol inhaler and nebulizer as needed, Flonase spray, and Claritin. The Veteran’s asthma did not require the use of oral or parenteral corticosteroid medications but required the use of inhaled medication, to include inhalational bronchodilator therapy, anti-inflammatory medication, daily, and nebulizer with albuterol as needed. It did not require the use of oral bronchodilators. The Veteran needed antibiotics once in January 2013 for 10 days, and none since that time. He did not require outpatient oxygen therapy. The Veteran had no asthma attacks with episodes of respiratory failure in the previous 12-months. He did not have any physician visits for required care of exacerbations. A pulmonary function testing (PFT) was performed and revealed post-bronchodilator FVC of 95 percent predicted, FEV-1 of 92 percent predicted, and FEV-1/FVC of 76 percent. The examiner indicated that the FEV-1 test result most accurately reflected the level of the asthma disability. Lastly, the examiner noted that in the previous year, the Veteran had no asthma attacks that prevented him from working. In July 2017, the Veteran underwent an additional VA respiratory examination, at which time the examiner confirmed a diagnosis of asthma. The Veteran reported that his condition worsened and required changes to his medication regimen. He was taking Symbicort but required frequent use of rescue inhaler. He was later switched to Advair. He indicated that he recently had to increase his use of the rescue inhaler and nebulizer to several times per week. The symptoms worsened seasonally. For example, during the fall with leaves and mild or warm weather months with pollen worsened his symptoms but this year, even during a mild winter he did not notice a break from his symptoms. The Veteran added that in the previous 12 months, he required 2 courses of oral steroid due to asthma exacerbations. The examiner noted that one of the two reported courses of steroids was confirmed in the Veteran’s records. The Veteran further indicated that he was prescribed antibiotics in February 2017 for asthma exacerbation; however, the examiner noted that such was prescribed for acute sinusitis and not asthma. The asthma required the use of intermittent courses or bursts of systemic corticosteroids once in the previous 12 months and daily inhalational bronchodilator therapy and anti-inflammatory medication. The asthma did not require the use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran had no asthma attacks with episodes of respiratory failure in the previous 12 months. He had one documented visit in April 2017 for asthma exacerbation. The frequency of physician visits for required care of exacerbations over the previous 12 months was less frequently than monthly. A PFT was performed and revealed post-bronchodilator FVC of 92 percent predicted, FEV-1 of 93 percent predicted, and FEV-1/FVC of 101 percent. The examiner indicated that the FEV-1 test result most accurately reflected the level of the asthma disability. Lastly, the examiner noted that the Veteran noticed shortness of breath both at rest and with exertion. He further reported symptoms at work on average once per week that interrupted his work activities. In addition, strong perfume odors on clients would trigger an asthma flareup. During a July 2019 private pulmonary consult at the Cleveland Clinic, a PFT was performed. The PTF revealed FVC of 87 percent predicted and FEV-1 of 84 percent predicted. The medical professional noted that the Veteran was referred due to hypoxia and an extensive workup included normal breathing tests. The medical professional went on to discuss worsening of the Veteran’s sleep apnea. In July 2020, the Veteran underwent an additional respiratory examination, at which time the examiner continued the diagnosis of asthma. The Veteran reported that the asthma had worsened, and due to a decrease in oxygen saturation, he was placed on oxygen; this happened once, and after increase of allergy medications, there was improvement. He was also started on Nucala injections and had improvement of symptoms. He continued to use a rescue inhaler and nebulizer routinely in addition to taking medications. The asthma did not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, or antibiotics. It required inhaled medications, to include inhalational bronchodilator therapy and anti-inflammatory medication, daily. The outpatient oxygen treatment was required but such was not continuous for more than 17 hours per day. The Veteran had no asthma attacks with episodes of respiratory failure in the previous 12 months. He had one documented visit for asthma exacerbation due to decreased oxygen saturation, which resolved without admission to the emergency room. The frequency of physician visits for required care of exacerbations over the previous 12 months was less frequently than monthly. A PFT was performed in conjunction with the July 2020 examination and revealed post-bronchodilator FVC of 70 percent predicted, FEV-1 of 71 percent predicted, and FEV-1/FVC of 101 percent. The examiner indicated that the FEV-1 test result most accurately reflected the level of the asthma disability. Lastly, it was noted that the Veteran missed one to two weeks of work in the previous year and had to avoid certain triggers. A PFT dated in August 2020 was performed at Tri-State Allergy. The PTF revealed FVC of 87 percent predicted, FEV-1 of 87 percent predicted, and FEV-1/FVC of 99 percent predicted. The medical professional emphasized the FEV-1 results of 87 percent. It was noted that the PFT was normal. On review, the Board finds that a rating higher than 30 percent for the Veteran’s asthma is not warranted. First, as reflected above, there is no medical evidence of FEV-1 of 40 to 55 percent predicted or an FEV-1/FVC ratio of 40 to 55 percent. Given the absence of PFT results that meet the criteria for a higher rating, the Board must turn to alternative criteria under the current rating schedule to determine if a higher rating is warranted. Nevertheless, the Veteran’s treatment records do not show that his asthma has required monthly visits to a physician for required care of exacerbations of asthma, and the Veteran does not assert otherwise. Moreover, there is no evidence showing that the Veteran’s asthma has required intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids for his asthma. Based on the foregoing, the Board concludes that the weight of the evidence is against an initial rating higher than 30 percent for the Veteran’s service-connected asthma as the criteria under DC 6602 have not been met. In reaching this conclusion, the Board has considered the Veteran's lay statements. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. Finally, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.