Citation Nr: 21026863 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-43 981 DATE: May 4, 2021 ORDER Entitlement to an initial rating in excess of 60 percent for bronchitis with asthma (respiratory disability) is denied. FINDING OF FACT Throughout the appeal, the Veteran's respiratory disability has been manifested by findings with FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 50 percent, or DLCO (SB) of 40 to 50 percent predicted; at no time was FEV-1 less than 40 percent of predicted value, FEV-1/FVC less than 40 percent, or DLCO (SB) less than 40 percent predicted, and there is no evidence of maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale, or; right ventricular hypertrophy, or; pulmonary hypertension, or; episode of acute respiratory failure, or; required outpatient oxygen therapy, or; more than one asthmatic attack per week with episodes of respiratory failure, or; required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 60 percent for a respiratory disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.97, Diagnostic Codes 6600, 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to January 1999. This matter is on appeal to the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, the Veteran testified during a Central Office hearing before the undersigned; a transcript of this hearing is of record. In August 2018 and November 2020, the Board remanded the matter. The claim for a TDIU was also remanded but since the December 2020 rating decision granted the claim, effective August 4, 2010, the matter is no longer before the Board. This rating decision also increased the rating for the respiratory disorder to 60 percent, effective August 4, 2010, but since this is not the highest schedular rating, the matter remains on appeal. Entitlement to an initial rating in excess of 60 percent for a respiratory disability. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's service-connected respiratory disability includes bronchitis and asthma and is rated under 38 C.F.R. § 4.97, Diagnostic Codes 6600-6602. Under Diagnostic code 6600 for bronchitis, a 60 percent rating is assigned when FEV-1 is between 40 to 55 percent predicted, or; the FEV-1/FVC is between 40 to 55 percent, or; DLCO (SB) is between 40 to 55 percent predicted, or with maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is assigned when FEV-1 is less than 40 percent of predicted value, or; the ratio of FEV-1/FVC is less than 40 percent, or; DLCO (SB) is less than 40 percent, or; maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catherization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. See 38 C.F.R. § 4.97, Diagnostic Code 6600. Bronchial asthma is rated under 38 C.F.R. § 4.97, Diagnostic Code 6602. A 60 percent rating 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 rating is assigned for 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; required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. See 38 C.F.R. § 4.97, Diagnostic Code 6602. A Note to Diagnostic Code 6602 provides that, in the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. 38 C.F.R. § 4.97. PFTs are required to evaluate these conditions, except when the results of maximum exercise capacity test are of record and are 20 ml/kg or less; when pulmonary hypertension cor pulmonale or right ventricular hypertrophy has been diagnosed; when there have been one or more episodes of acute respiratory failure; or when outpatient oxygen therapy is required. 38 C.F.R. § 4.96(d)(1). If DLCO (SB) results are not of record, such conditions are evaluated based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). When PFTs are not consistent with clinical findings, conditions are evaluated based on the PFTs unless the examiner states why they are not a valid indication or respiratory functional impairment in a particular case. 38 C.F.R. § 4.96(d)(3). 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). When evaluating based on PFTs, post-bronchodilator results are to be used unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case, the pre-bronchodilator results are used for rating purposes. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different PFTs, so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). August and December 2010 VA treatment records show the Veteran was treated for upper respiratory infections. See March 2012 CAPRI records. On July 2011 VA examination, the Veteran's respiratory disability history noted that it caused hemoptysis, orthopnea, and shortness of breath after walking one city block. She had a cough with sputum and mucus coughed up and she saw a physician as often as twice a year to control her attacks. Asthma symptoms were mixed, and attacks were monthly. She reported contracting infections easily and required antibiotics periodically four times a year with each episode lasting two weeks. When she had an infection, she required bed rest and treatment by a physician as often as "1 time(s) per day, each time lasting for 2 week(s)." There were no episodes of respiratory failure that required respiration assistance from a machine. For asthma, she used Albuterol four times a day for three years with good results but with some lightheadedness. She also used other medications with minimal to good results. Her disability did not require outpatient oxygen therapy. Her overall functioning was impaired as she walked shorter distances, did not walk upstairs, changed sleeping habits, and limited activities that could trigger an attack. The examination revealed no evidence of a heart disorder. Chest X-rays were normal except for a right perihilar infiltrate that extended to the right lower lung. PFT's revealed pre- and post-bronchodilator FEV-1 were 56 percent and 63 percent predicted, respectively. Pre- and post-bronchodilator FEV-1/FVC were 66 percent and 69 percent predicted, respectively. See July 2011 VA Examination. September 2013 PFT findings showed post-bronchodilator FEV-1 was 46 percent and post-bronchodilator FEV-1/FVC was 58 percent; pre-bronchodilators were not completed. The DCLO was 41 percent. The Veteran did not have dyspnea at rest or with exercise or a persistent cough. See November 2020 CAPRI records. An October 2014 records shows the Veteran had an acute upper respiratory infection. See December 2020 CAPRI records. September 2016 treatment records show the Veteran was seen multiple times at urgent care for respiratory complaints. On the first visit she presented with three day history of chest congestion and a productive cough. She had wheezing and rhonchi was heard throughout, but lungs and cardiomediastinal structures were normal. Two days later she was seen twice in one day for complaints of trouble breathing, especially at night. She also has wheezing and rattling and a nonproductive hacking cough. See October 2016 Imaging Reports Veteran Provided. March 2017 PFTs revealed pre- and post-bronchodilator FEV-1 were 50 percent and 58 percent predicted, respectively. Pre- and post-bronchodilator FEV-1/FVC were 64 percent and 68 percent predicted, respectively. The DCLO was 55 percent. The Veteran did not have dyspnea at rest or with exercise or a persistent cough. See November 2020 CAPRI records. In June 2017, the Veteran's chief complaints were intermittent difficulty breathing for the past two to three days. She used a nebulizer for the past two nights but felt like it worsened. She had wheezing in both lungs and her chest had scattered wheezing with normal expansion bilaterally, non-labored respiration, and no rales or rhonchi. In August 2017, the Veteran was advised to start using inhaler every four to six hours. See October 2017 CAPRI records. January 2019 PFTs revealed pre- and post-bronchodilator FEV-1 were 48 percent and 53 percent predicted, respectively. Both pre- and post-bronchodilator FEV-1/FVC were 64 percent. The DCLO was 57 percent. The Veteran did not have dyspnea at rest or with exercise or a persistent cough. See November 2020 CAPRI records. In December 2019, she did not report for a scheduled VA examination, and attempts to contact her by phone to possibly reschedule if good cause was shown was unsuccessful. See December 2019 Exam Request and Report of General Information. In March 2020, the Veteran reported having a two week history of shortness of breath. See May 2020 CAPRI. September 2020 urgent care records show that she presented with a four day history of illness. She reported having a cough, some nocturnal shortness of breath, and some chest tightness that waxed and waned, but did not go away. She denied sputum. The respiratory exam showed no respiratory distress, lungs were clear in all fields, and there was no splinting. Her chest tightness is atypical and came only when the URI started. The discharge diagnosis was cough, respiratory infection, and chest tightness. She was prescribed antibiotic and steroid. See December 2020 CAPRI records. The only higher schedular rating that may be assigned under Diagnostic Code 6600 or 6602 is 100 percent and based on the evidence the Veteran's disability does not meet or approximate the criteria for a total rating. At no time has her service-connected bronchitis or asthma resulted in PFTs with a FEV-1 that was less than 40 percent predicted value or FEV-1/FVC less than 40 percent. Regarding criteria specifically applicable to bronchitis, the evidence shows the DLCO was also not less than 40 percent of predicted and she did not require oxygen therapy. There is no maximum exercise capacity test of record or evidence of pulmonary hypertension, cor pulmonale, or right ventricular hypertrophy with which to consider in rating the disability. There is also no evidence of acute respiratory failure. Regarding criteria for asthma, the evidence shows that the Veteran does not have weekly attacks with episodes of respiratory failure. September 2020 records show she was prescribed a steroid, but it was in relation to treatment for a URI and it is not shown to require daily use. For the reasons stated, the Board finds that the severity of the Veteran's respiratory disability is not shown to be compatible with a 100 percent rating; therefore, a preponderance of the evidence is against the claim for a higher rating. Thus, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst 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.