Citation Nr: 21029379 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-63 147 DATE: May 13, 2021 ORDER Entitlement to a disability rating of 60 percent, and no higher, for asthma with emphysema and chronic obstructive pulmonary disease (COPD) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, during the appeal period, the Veteran was prescribed intermittent (at least three per 12-month period) courses of systemic (oral or parenteral) corticosteroids for his asthma symptoms. CONCLUSION OF LAW The criteria for a disability rating of 60 percent, and no higher, for asthma with emphysema and COPD are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.3, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1955 to October 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). The March 2017 rating decision granted service connection for the Veteran's asthma with emphysema and COPD (hereinafter, "asthma") and assigned an initial 30 percent rating effective September 28, 2016. The Veteran timely appealed the initial rating and indicated his asthma symptoms were worse than what his current disability level reflected. The Veteran did not select a hearing option on his VA Form 9 but later submitted a November 2017 correspondence requesting a Decisions Review Officer (DRO) hearing. Prior to the hearing being conducted, the issue was certified to the Board for review. In March 2018 the Board remanded the issue to afford the Veteran the DRO hearing he requested. Sadly, in August 2019, the VA was informed that the Veteran had passed away in May 2019. In May 2020, the Veteran's widow became the properly substituted Appellant and requested that the appeal process proceed without the DRO hearing. The Board remanded the issue in November 2020 for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. A 30 percent rating is warranted for FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or daily inhalation or oral bronchodilator therapy, or inhalation antiinflammatory medication. A 60 percent rating is warranted 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 parental) corticosteroids. A 100 percent rating is warranted 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; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medication. 38 C.F.R. § 4.97, Diagnostic Code 6602. If there is a question as to which rating to apply to a Veteran's disability, the higher rating 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 1. Entitlement to a disability rating of 60 percent, and no higher, for asthma with emphysema and COPD. The Veteran was granted service connection for his asthma in March 2017. The Veteran was afforded a 30 percent disability rating based on his need for daily inhalational therapy and inhalational anti-inflammatory medication. The Veteran timely appealed this decision. As an initial matter, the November 2020 Board decision remanded the Veteran's claim for additional development to include obtaining the Veteran's private medical records. A December 2020 correspondence from the RO was sent to the Appellant requesting she complete and submit a "VA Form 21-4142, Authorization to Disclose Information and VA Form 21-4142a, General Release of Medical Provider Information." The Appellant never submitted the requested information. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Appellant also has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist the Appellant in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the Appellant performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). Therefore, an additional remand for submission of an authorization to disclose information and a general release of medical provider information is not warranted. Id. The Veteran underwent a VA examination in February 2017 in which the examiner stated the Veteran did not require the use of oral or parenteral corticosteroids in the last 12 months. Rather the Veteran only required the daily use of an inhalational bronchodilator therapy and an inhalational anti-inflammatory medication. The examiner also noted that the Veteran had not had any required care for exacerbations nor episodes of respiratory failure in the last 12 months prior to this examination. The Veteran's post-bronchodilator FEV-1 measured at 88 percent while his FEV-1/FVC measured 71 percent. The examiner concluded that they were unable to state which of the Veteran's respiratory conditions, asthma, emphysema, or COPD, is the most responsible for the Veteran's lung function limitations without resorting to "mere speculation" as all of them contribute to his limitations. However, the Veteran underwent an additional VA examination in March 2017 for his respiratory conditions generally. This examiner stated that the Veteran's respiratory condition required the use of "oral or parenteral corticosteroid medication" 4 or more times in the last 12 months prior to the date of this examination. The examiner further stated that the Veteran's asthma, emphysema, and COPD were predominantly responsible for the need for corticosteroids. However, the Veteran did not have any asthma attacks with episodes of respiratory failure nor any physician visits for required care of exacerbations in the past 12 months. FEV-1 and FEV-1/FVC measurements were not taken during this examination. Additionally, the Veteran's VA outpatient records show additional prescriptions for oral corticosteroids. For example, in February 2018 the Veteran was provided oral steroids for his respiratory system along with antibiotic/antiviral medications. In April 2019 the Veteran was hospitalized for this asthma and provided steroids parenterally via intravenous therapy. The Veteran's VA outpatient records do not show an improvement in the Veteran's asthma symptoms but rather show a steady worsening of his asthma, emphysema, and COPD. Additionally, while on remand from the November 2020 Board decision, an addendum opinion considering the current disability level of the Veteran based on his most recent VA outpatient records was obtained. In the January 2021 addendum, the examiner again stated the Veteran required about three courses of "systemic oral corticosteroids" in the past 12 months. The Veteran also had about two unscheduled visits for his asthma symptoms per year. He was most recently admitted to the hospital from January 25, 2018 to January 29, 2018 and April 17, 2019 to May 15, 2019. The Veteran's most recent FEV-1 and FEV-1/FVC measurements were taken in April 2018. The Veteran's FEV-1 was 74 percent and FEV-1/FVC was 73 percent. This shows a steady decline in his FEV-1 and FEV-1/FVC measurements when compared with the measurements taken only one year prior during the February 2017 VA examination. In viewing the evidence in the light most favorable to the Veteran, the Board finds that the evidence is at least in equipoise as to whether the Veteran was prescribed oral or parenteral corticosteroids at least three times per 12-month period throughout the appeal period. In summary, the Veteran was receiving 4 or more doses of oral or parenteral steroids as asserted by the April 2017 VA examiner. The Veteran's VA outpatient records do not indicate that his asthma was improving and thus the need for steroids was decreasing during the appeal period. Rather, the Veteran's records show a worsening of symptoms, as evidence by his unscheduled doctors' visits for his asthma symptoms and prescriptions for corticosteroids on an as needed basis. This indicates his need for steroids would only continue as his disability progressed. As a result, resolving doubt in his favor, the Board finds that the Veteran was prescribed oral or parenteral corticosteroids at least three times per 12-month period throughout the appeal period, meeting the criteria for a 60 percent rating. 38 C.F.R. § 4.3. However, the Veteran's VA outpatient records do not show his FEV-1 was less than 40 percent predicted or that his FEV-1/FVC was less than 40 percent. They also do not show more than one or more asthma attacks per week with episodes of respiratory failure nor did he require daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medication. Thus, a 100 percent disability rating is not applicable. 38 C.F.R. § 4.97, Diagnostic Code 6602. (Continued on the next page) A rating of 60 percent, but no higher, under DC 6602 is granted for the entire appeal period. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.