Citation Nr: 21025858 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-24 096A DATE: April 29, 2021 ORDER 1. Entitlement to an increased evaluation of 60 percent, but no higher for bronchial asthma prior to October 8, 2019, is granted. 2. Entitlement to an increased evaluation in excess of 60 percent prior to January 6, 2021 is denied. FINDING OF FACTS 1. The evidence supports a finding that prior to October 8, 2019, the Veteran’s bronchial asthma is manifested by FEV-1 noted at 67 percent with FEV-1/FVC noted at 69 and intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 2. The evidence supports a finding that prior to January 6, 2021, the Veteran’s bronchial asthma is manifested by FEV-1 noted at 73 percent with FEV-1/FVC noted at 94 percent with no episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, the requirements for an increased rating of 60 percent, but no higher, prior to October 8, 2019, for bronchial asthma are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.96, 4.97 Diagnostic Codes 6602. 2. The criteria for an increased rating in excess of 60 percent prior to January 6, 2021, for bronchial asthma are not met. 38 U.S.C. §§ 1155 , 5107 (2012); 38 C.F.R. §§ 4.1 , 4.2, 4.3, 4.96, 4.97 Diagnostic Codes 6602 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1988 to June 2000. In March 2020, the Board remanded the Veteran’s claims for additional development. The Board finds that there was substantial compliance with the remand directives for the issue on appeal discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55. In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Asthma Asthma is evaluated under the schedule of ratings-respiratory system. See 38 C.F.R. § 4.97 Diagnostic Code 6602 asthma, bronchial. A 30 percent evaluation is assigned for FEV-1 of 56- to 70-percent predicted, or; 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 assigned for 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. A 100 percent evaluation is assigned for asthma-FEV-1 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. 38 C.F.R. § 4.97 Diagnostic Code 6602 (2019). 1. Entitlement to an increased evaluation in excess of 30 percent prior to October 8, 2019 for bronchial asthma The Veteran contends that he is entitled to an evaluation in excess of 30 percent prior to October 8, 2019 for his bronchial asthma. The Board concludes that, with resolution of reasonable doubt in his favor, prior to October 8, 2019, the Veteran’s symptoms more closely approximated the symptoms associated with a 60 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 60 percent rating. VA outpatient treatment records from September 2000 to present reveal that the Veteran has undergone regular treatment for his asthma. May 2002 private treatment records reveal that the Veteran was treated for asthma due to wheezing. In a May 2011 VA respiratory system examination, the examiner diagnosed the Veteran with asthma. The examiner noted that the Veteran’s asthma has become progressively worse since the date of its onset. The Veteran reported exacerbations of several times per year and at least once a month. The examiner noted abnormal breathing and wheezing. He determined that the Veteran’s asthma caused mild impairment between attacks. Pre-bronchodilator FEV-1 was noted at 82 percent with FEV-1/FVC noted at 98 percent. Post-bronchodilator FEV-1 was noted at 101 percent with FEV-1/FVC noted at 108 percent. The examiner noted no history of dizziness, syncope, or fatigue. As indicated by the examination, the Veteran does not use oral or parenteral corticosteroids. However, the examiner did note the use of inhaled medications daily. The Veteran’s respiratory condition was noted as not requiring antibiotics or bronchodilators. There was also no evidence that outpatient oxygen therapy was required. Exacerbations requiring a visit to a physician were noted as several per year. The Veteran reported missing several weeks from work due to appointments for his asthma and emergency room visits. He reportedly was unable to do sporting and other activities he had previously done as they caused wheezing and shortness of breath. August 2011 private treatment records reveal that the Veteran presented with an asthma flare-up. The Veteran was prescribed a non-corticosteroid. In an August 2015 pulmonary function report, the examiner diagnosed the Veteran with mild restrictive ventilatory defect. Pre-bronchodilator FEV-1 was noted at 67 percent with FEV-1/FVC noted at 93 percent. Post-bronchodilator FEV-1 was noted at 93 percent with FEV-1/FVC noted at 96 percent. The Board also acknowledges the private treatment records indicating that the Veteran was prescribed the corticosteroid Prednisone various times during the course of the appeal. The record indicates the dates of prescription as follows: July 2008; August 2011; April 2012; August 2014; and May 2019. The record indicates that the Veteran was also prescribed the corticosteroid methylprednisolone on January 2007. In a September 2019 VA respiratory conditions examination, the examiner diagnosed the Veteran with asthma. The examiner noted that the Veteran’s asthma requires the use of corticosteroids intermittently four or more times in the past twelve months. The examiner also noted that the Veteran’s asthma requires the use of inhalational bronchodilator therapy daily and inhalation anti-inti-inflammatory medication daily. The examiner noted that the Veteran has not had asthma attacks with evidence of respiratory failure in the last twelve months. However, the Veteran has reported monthly asthma attacks in the last twelve months. Pre-bronchodilator FEV-1 was noted at 67 percent with FEV-1/FVC noted at 69 percent. Post-bronchodilator FEV-1 was noted at 69 percent with FEV-1/FVC noted at 78 percent. Based on a review of the record, the Board finds, with resolution of reasonable doubt, that a higher evaluation of 60 percent effective prior to October 8, 2019, but no higher is warranted. An examination of the findings of the record reveal that the Veteran’s bronchial asthma is manifested by FEV-1 noted at 67 percent with FEV-1/FVC noted at 69 percent with intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids as indicated by the September 2019 examiner. The Veteran’s symptomology prior to October 8, 2019, does not meet the criteria that would warrant a schedular 100 percent evaluation. The evidence of the record reveals that prior to October 8, 2019 the Veteran’s bronchial asthma is not manifested by asthma-FEV-1 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. Therefore, resolving all doubt in the Veteran’s favor, the Board finds that the level of severity of the Veteran’s bronchial asthma satisfy the criteria for a higher disability evaluation under DC 6602 and the Veteran’s claim for an increased 60 percent rating prior to October 8, 2019, is granted. 2. Entitlement to an increased evaluation in excess of 60 percent prior to January 6, 2021. As determined above the Veteran’s bronchial asthma prior to October 8, 2019 warrants a 60 percent evaluation, thus an evaluation of the record will be made after October 8, 2019. The 60 percent rating was assigned effective the date of an examination. The Board concludes that prior to January 6, 2021, the Veteran’s symptoms more closely approximated the symptoms associated with a 60 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 60 percent rating. October 2019 VA outpatient treatment records reveal that the Veteran was prescribed prednisone to treat his asthma. May 2020 private treatment records reveal that the Veteran received treatment for severe persistent asthma. In a June 2020 VA respiratory conditions examination, the examiner diagnosed the Veteran with asthma. The examiner noted that the Veteran’s asthma does not require the use of corticosteroids; however, the use of inhalational bronchodilator therapy daily was noted. The examiner also noted that the Veteran’s respiratory disorder does not require the use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. Asthma attacks with episodes of respiratory therapy in the past twelve months or exacerbations requiring a physician visit in the past twelve months was noted as negative. Pre-bronchodilator FEV-1 was noted at 73 percent with FEV-1/FVC noted at 94 percent. Post-bronchodilator FEV-1 was noted at 84 percent with FEV-1/FVC noted at 100 percent. Concerning functional and occupational impairments, the examiner determined that the Veteran’s asthma did not impact his ability to work. Based on a review of the record, the Board finds that a higher evaluation of 100 percent prior to January 6, 2021 for the Veteran’s bronchial asthma is not warranted. An examination of the findings of the record reveal that the Veteran’s bronchial asthma is manifested by FEV-1 noted at 73 percent with FEV-1/FVC noted at 94 percent and the use of inhalational bronchodilator therapy daily with no evidence of more than one attack a week resulting in respiratory therapy as indicated by the June 2020 examiner. The Veteran’s symptomology prior to January 6, 2021 does not meet the criteria that would warrant a schedular 100 percent evaluation. The evidence of the record reveals that prior to January 6, 2021, the Veteran’s bronchial asthma is not manifested by asthma-FEV-1 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. The Board finds that based on the evidence of the claims file, the 60 percent evaluation prior to January 6, 2021 currently assigned better approximates the trajectory of the Veteran’s bronchial asthma. As the Board reviewed the Veteran’s records and determined that they do not support an increased disability rating in excess of 60 percent prior to January 6, 2021 for this disorder, the evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harris, Michael E. 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.