Citation Nr: 21029165 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 11-05 344 DATE: May 12, 2021 ORDER Entitlement to extraschedular consideration for bronchial asthma, currently rated as 30 percent disabling is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran has had exceptional or unusual symptoms of bronchial asthma that schedular evaluation of 30 percent for that period is found to be inadequate. 2. The Veteran's service-connected disabilities are not shown by the competent medical evidence of record to result in an inability to obtain or maintain substantially gainful employment so as to warrant referral of the TDIU claim on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for an evaluation on an extraschedular basis in excess of 30 percent for bronchial asthma have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321 (b)(1), 4.97, Diagnostic Code 6602 (2020). 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to November 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the Veteran appeared and testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's electronic claims file. In April 2014, the Board denied a rating in excess of 30 percent for bronchial asthma, to include whether extraschedular consideration was warranted. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2015 memorandum decision, the Court affirmed the part of the decision that denied an increased rating on a schedular basis but vacated the portion of the Board's decision that found that the Veteran was not entitled to extraschedular consideration for his bronchial asthma. The case was returned to the Board for adjudication consistent with the July 2015 memorandum decision. In February 2016, the Board again denied entitlement to extraschedular consideration for bronchial asthma. The Veteran appealed the February 2016 Board decision to the Court. In a March 2017 Memorandum decision, the Court vacated the Board's decision. In August 2017 and April 2020, the Board remanded the claims for further development. Asthma The Veteran is currently in receipt of a 30 percent for his bronchial asthma. Again, a higher schedular rating was denied by the Board in its April 2014 decision, and the Court affirmed this denial. The issue remaining before the Board is whether the Veteran's bronchial asthma warrants an increased rating on an extraschedular basis. Under Diagnostic Code 6602, bronchial asthma with FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent predicted, or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication warrants a 30 percent rating. Bronchial asthma with 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 warrants a 60 percent rating. Bronchial asthma with FEV-1 that is 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 warrants a maximum 100 percent rating. Post-bronchodilator studies are required when pulmonary function testing (PFT) is conducted for disability evaluation purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96 (2020). When evaluating a restrictive lung disability based on PFTs, VA is to use the post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results are poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96 (d) (5) (2020). In those cases, VA is to use the pre-bronchodilator values for rating purposes. Id. If the FEV-1 and FVC values are both greater than 100 percent, then VA may not assign a compensable evaluation based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96 (d) (7) (2020). Ratings for coexisting respiratory conditions such as chronic bronchitis will not be combined with each other; instead, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96 (2020). An extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render the application of the regular schedular standards impractical. 38 C.F.R. § 3.321 (b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Per the August 2017 Board remand instructions in conjunction with the Court's March 2017 Memorandum decision, the Agency of Original Jurisdiction referred the matter to the Director of Compensation Service for an extraschedular evaluation consideration. In a January 2019 administrative review report, the Director recommended to deny the Veteran's entitlement to extraschedular evaluation in excess of 30 percent for asthma. The Director noted that a February 2012 VA examination report indicated that the Veteran had regular visits to his primary care physician every 6 months and that the physician noted that there had been no exacerbations while on the current medication since June 2011. The examiner indicated that the Veteran reported being able to go deer hunting out in the woods without any breathing complaints documented. The Veteran also reported that he knew what to do to prevent going to the emergency room usually. The Director noted that the evidence available for review did not show significant disabling impairment as a result of the Veteran's bronchial asthma which was not contemplated by the rating schedule. There was no indication that the Veteran had experienced marked interference with employment or frequent periods of hospitalization due to the bronchial asthma and the totality of the evidence did not support the contention that his service-connected bronchial asthma was so exceptional or unusual as to render the use of the regular rating schedule standards impractical. In January 2020, the Director of Compensation Service issued an Advisory Opinion regarding this matter and decided that the Veteran's entitlement to an extraschedular evaluation for asthma under 38 C.F.R. § 3.321 (b)(1) cannot be granted. The Director noted that a March 2010 VA examination detailed that the Veteran had shortness of breath after walking 1 block and monthly asthma attacks. The Veteran at the examination also reported that he was seen at the emergency room twice for breathing treatments but otherwise did not require the usage of outpatient oxygen therapy. The Director also noted that a February 2012 VA examination showed that there had been no exacerbations while on his current medication since 2011 and he had no breathing complaints documented after being in the woods. The Director found that while the evidence showed that ongoing treatment for bronchial asthma, the objective evidence of record failed to corroborate incapacitating episodes creating marked interference with employment. Further, the evidence did not reveal frequent hospitalizations due specifically to bronchial asthma or treatment for bronchial asthma. The evidence of record also did not show that the currently assigned, or available schedular evaluations for bronchial asthma were inadequate due to exceptional or unusual circumstances. The Director found that no unusual or exceptional disability pattern had been demonstrated that would render application of the regular rating criteria as impractical. Thus, the Director of Compensation Service determined the available medical evidence did not support a higher evaluation on an extraschedular basis for the Veteran's service-connected asthma. Based on above, the Board finds that evidence of record does not show that the Veteran has had exceptional or unusual symptoms of bronchial asthma that the schedular evaluation of 30 percent is found to be inadequate. A comparison between the level of severity and symptomatology of the Veteran's bronchial asthma disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his bronchial asthma disability. Specifically, the Veteran reports orthopnea, breathing problems triggered by cold/hot weather, shortness of breath after walking one city block, monthly asthmatic attacks and needing to visit a physician to control the attacks as often as 4 times per year, respiratory infections with antibiotic use, daily inhalational oral bronchodilator therapy, daily inhalational anti-inflammatory medication, additional medications used to control the frequency of his asthma attacks, borderline obstructive defect (compatible small airway disease), and increased wheezing despite medication use. While the Board is sympathetic with these limitations, the Veteran's bronchial asthma disability has not reflected any factors that constitute an unusual or exceptional disability picture given the level of disability contemplated in his assigned rating. Although the Veteran uses both inhaled bronchodilator therapy and anti-inflammatory medication for treatment, and has continued breathing problems even with additional medications, the Board cannot find that his disability picture rises to a level considered "exceptional." The rating criteria for a 30 percent rating specifically contemplates treatment with inhaled medications, and a higher rating is available only for symptoms requiring courses of systemic corticosteroid, a lower FEV-1 of FEV1/FVC, or monthly visits to a physician for treatment for exacerbations. Viewing the Veteran's symptoms as a whole, the Board finds that the Veteran's disability is neither exceptional, nor is the available schedular rating for his asthma inadequate. The Board has considered the Veteran's specific symptoms, but finds that they are not indicative of an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. He has some exacerbations requiring physician involvement, but it is certainly not monthly or less. He reported that his asthma makes it difficult to work as a welder, but during his hearing, he reported that he is still employed. The Board finds that although his asthma appears to impact his work as a welder, it is not "marked" inference with his employment, nor do the clinical records show that he is hospitalized frequently for his asthma. In fact, the Veteran reported that he is able to take precautions to avoid having to seek emergency treatment for his asthma symptoms. See February 2012 VA examination report. Thus, the Veteran's current schedular ratings are adequate to fully compensate him for his disability on appeal. There is no evidence of record of an exceptional or unusual clinical picture not already contemplated by the rating criteria under 38 C.F.R. § 4.114, Diagnostic Code 6602. Under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Notably, the Veteran is also service connected for tinnitus. Neither the Veteran nor his representative has indicated any specific service-connected disability which is not captured by the schedular evaluation of the Veteran's individual service-connected conditions. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected bronchial asthma disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. In this regard, there is nothing exceptional or unusual about the Veteran's disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Accordingly, the Board need not proceed to consider the second factor, whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. In light of the opinion of the Director, Compensation and Pension Service, and the analysis herein, the Board finds that 38 C.F.R. § 3.321 is inapplicable and thus an extraschedular is not warranted. Consequently, the Board finds that the Veteran's entitlement to an evaluation in excess of 30 percent for bronchial asthma on an extraschedular basis is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321 (b)(1), 4.97, TDIU Laws and Regulations Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2018). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2020). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19 (2020). Even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b) (2020). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) (1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Additionally, the Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. Factual Background and Analysis As noted by the Board in its April 2020 remand, in December 2015, the Veteran filed a non-service-connection pension claim in which he asserted that he was unemployed in part due to his asthma. Since entitlement to TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, it is part of the initial adjudication of a claim for increase. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Notably, after service the Veteran worked as a welder which required physical work. The Veteran contends that he last worked in September 2015. For the period since December 2015, the Veteran has a combined 40 percent rating as he is service-connected for bronchial asthma (rated 30 percent disabling) and tinnitus (rated as 10 percent disabling). As noted above, the Veteran does not have one service-connected disability rated at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent, with one disability rated at 40 percent. As such, the criteria for a schedular TDIU under 38 C.F.R. § 4.16 (a) are not met. On review of the record, the Veteran was not unemployable by reason of his service-connected disabilities and that referral to the Director, Compensation and Pension Services, for extra-schedular consideration is thus not warranted. Notably, a February 2009 VA audiological examination noted that the Veteran's tinnitus did not have any impact on his daily activity. A 2010 VA examiner indicated that the Veteran's usual occupation as a welder was limited by asthma and the fume inhalation, and he was limited recreationally as he could not play exertional sports. The February 2012 VA examiner also found that although the Veteran maintained that his asthma impacted his work as a welder, the Veteran's asthma did not impact his ability to work. As reflected above, the Veteran's service-connected bronchial asthma disability impacts the Veteran's ability to work. However, the medical evidence on record shows that the Veteran's service-connected disabilities did not render him unemployable although the type of employment may have been limited. The Board finds that the limitations noted by the February 2009 and February 2012 VA examiners specifically addresses the limitations surrounding potential employment and these limitations alone again do not necessarily mean that the Veteran is not able to secure or follow a substantially gainful occupation to include sedentary occupation. Thus, the Veteran's service-connected asthma and tinnitus alone are not the basis for his unemployability. The Board also notes that the Veteran filed a claim for Social Security Administration (SSA) benefits which was subsequently denied. Notably, the Veteran's claims involved his service-connected asthma disability and the non-service-connected disabilities of a left shoulder, right elbow, gallbladder, hepatitis C, low back and depression disabilities. Additionally, the medical evidence does not contain an opinion that the Veteran's service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment and the Veteran has not presented or identified any such existing medical evidence or opinion. While the Board is sympathetic for the restrictions that encompassed these disabilities, the evidence clearly demonstrates that the Veteran's service-connected disabilities did not preclude all forms of employment. Again, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board concludes that the most probative evidence of record weighs heavily against finding that the Veteran's service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. Accordingly, the Board finds that the preponderance of the evidence is against granting a TDIU and that referral for consideration of entitlement to TDIU on an extraschedular basis is not required. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.