Citation Nr: 21031328 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 14-29 496 DATE: May 21, 2021 ORDER Entitlement to service connection for insomnia as a distinct disability is dismissed. A rating higher than 60 percent for asthma prior to June 19, 2020, and for asthma and sleep apnea higher than 50 percent as of that date, is denied. An initial rating higher than 30 percent prior to August 16, 2013, and higher than 50 percent as of that date, for adjustment disorder with mixed anxiety and depressed mood (psychiatric disorder) is denied. REMANDED Entitlement to a rating higher than 20 percent prior to September 13, 2018, and higher than 40 percent as of that date, for curvature of the thoracic spine with herniated nucleus pulposus, L4-5, L5-S1 (back disability) is remanded. FINDINGS OF FACT 1. The Veteran's insomnia is not manifested by disability distinct from her service-connected sleep apnea, the evaluation of which contemplates persistent daytime hypersomnolence, and her adjustment disorder with mixed anxiety and depressed mood, the compensated symptoms of which include chronic sleep impairment. 2. Prior to June 19, 2020, the Veteran's asthma was not manifested by FEV-1 less than 40 percent of predicted value, or FEV-1/FVC less than 40 percent; it was not manifested by more than one attack per week with episodes of respiratory failure; it did not require daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medication. 3. Since at least June 19, 2020, the effective date of the reduction to 30 percent, the Veteran's asthma has shown sustained improvement as it has not required at least three courses per year of systemic (oral or parenteral) corticosteroids for a number of years, which was the basis for the 60 percent rating previously assigned, and because actual improvement in her functioning under the ordinary conditions of life and work is established; her asthma has not required daily use of immuno-suppressive medications, has not been manifested by an FEV-1 less than 56 percent predicted of predicted value, or an FEV-1/FVC less than 56 percent; and has not required at least monthly visits to a physician for required care of exacerbations. 4. Prior to August 16, 2013, the Veteran's psychiatric disorder was not manifested by symptoms matching or equivalent to the symptoms listed for a 50 percent rating or higher, or by occupational and social impairment corresponding to a 50 percent rating or higher. 5. Since August 16, 2013, the Veteran's psychiatric disorder has not been manifested by occupational and social impairment corresponding to a 70 percent rating or higher; and apart from reported suicidal ideation in the June 2015 private examination, and otherwise denied, it has not been manifested by symptoms matching or equivalent to the symptoms listed for a 70 percent rating or higher. CONCLUSIONS OF LAW 1. The issue of service connection for insomnia is dismissed as moot. 38 U.S.C. § 7105. 2. The criteria for a rating higher than 60 percent for asthma prior to June 19, 2020, and for asthma and sleep apnea higher than 50 percent as of that date, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.344, 4.3, 4.96, 4.97, Diagnostic Code 6602. 3. The criteria for an initial rating higher than 30 percent prior to August 16, 2013, and higher than 50 percent as of that date, for adjustment disorder with mixed anxiety and depressed mood have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.30, Diagnostic Code 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1992 to September 1994, and from August 1999 to February 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2012 and June 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board remanded the matters for further development in July 2018. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2015. A transcript of the hearing is of record. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Insomnia The Veteran claims service connection for insomnia. For the following reasons, the Board finds that this issue is moot, and that dismissal is warranted. The Veteran's insomnia does not constitute a disability in its own right distinct from the manifestations of her service-connected sleep apnea and psychiatric disorder. Her sleep apnea has been assigned a rating of 50 percent under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6847. Under DC 6847, a 30 percent rating is assigned for sleep apnea manifested by persistent day-time hypersomnolence. Thus, the 50-percent rating assigned her sleep apnea necessarily contemplates that manifestation. The Veteran's psychiatric disorder has been assigned a 30 percent rating prior to August 16, 2013, and a 50 percent rating as of that date, under 38 C.F.R. § 4.130, DC 9440, which pertains to chronic adjustment disorder. Under DC 9440, chronic adjustment disorder is rated under the General Rating Formula for Mental Disorders (General Rating Formula). Id. Under the General Rating Formula, a 30 percent rating contemplates symptoms that include chronic sleep impairment. Id. VA's Schedule for Rating Disabilities supports the Board's conclusion that insomnia does not constitute a discrete disability. It does not include a diagnostic code pertaining to insomnia as a disability in its own right, but rather contemplates it as a symptom of a mental disorder, namely chronic sleep impairment. See id.; see also generally 38 C.F.R. § Part IV. Thus, the Veteran's service-connected psychiatric disorder already encompasses her insomnia as a symptom of it, and any resultant functional impairment. There is no indication in the record that the Veteran's insomnia is manifested by disability distinct from her service-connected sleep apnea and psychiatric disorder, the evaluations of which contemplate symptoms including persistent daytime hypersomnolence and chronic sleep impairment, respectively. To the extent the Veteran's insomnia may cause other psychiatric symptoms, those too are necessarily contemplated in the evaluation of the Veteran's psychiatric disorder. Since "chronic sleep impairment" is a symptom of her psychiatric disorder, any symptoms or functional impairment caused by her sleep impairment or insomnia are contemplated in evaluating her service-connected psychiatric disorder. In short, service connection for the Veteran's insomnia is already in effect as a manifestation of her service-connected sleep apnea and psychiatric disorder, and is compensated by the ratings assigned those disabilities, which contemplate symptoms including persistent daytime hypersomnolence and chronic sleep impairment. Accordingly, as there is no issue in dispute, and as granting service connection for insomnia in its own right would be superfluous and contrary to law, dismissal of this issue is appropriate. See 38 U.S.C. § 7105. Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Evaluation of Asthma The Veteran's asthma has been assigned a 60 percent prior to June 19, 2020. As of that date, it has been rated in conjunction with the Veteran's sleep apnea, and assigned a 50 percent rating under DC 6847, which pertains to sleep apnea. In this regard, the RO determined that since June 19, 2020, the Veteran's asthma no longer satisfies the criteria for a 60 percent rating, and has improved to the point where a rating no higher than 30 percent is warranted under the rating criteria applicable to asthma, for the reasons discussed below. As the rating schedule prohibits separate ratings for most upper respiratory conditions, including asthma and sleep apnea, it has assigned a 50 percent rating for the Veteran's asthma and sleep apnea together under DC 6847. See 38 C.F.R. § 4.96(a). For the following reasons, the Board finds that the criteria for higher ratings have not been met. Asthma is rated under DC 6602, which pertains to bronchial asthma. 38 C.F.R. § 4.97. Under DC 6602, a 100-percent rating is assigned when pulmonary function tests (PFT's) show an FEV-1 (Forced Expiratory Volume in one second) less than 40 percent of predicted value, or FEV-1/FVC (Forced Vital Capacity) less than 40 percent, or when asthma requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. A 60-percent evaluation is assigned for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or when there is at least monthly visits to a physician for required care of exacerbations, or when intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids are prescribed. A 30-percent rating is assigned for an FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or when asthma requires daily inhalation or oral bronchodilator therapy, or daily inhalational anti-inflammatory medication. A 10-percent rating is assigned for an FEV-1 of 71 to 80 percent, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. Post-bronchodilator results are required when pulmonary function tests 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). In applying the rating criteria, 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 values should be used for rating purposes. 38 C.F.R. § 4.96(d)(5). The February 2012 VA examination report reflects that the Veteran's asthma attacks had become more frequent, and were associated with a sinus condition (for which service connection has separately been awarded). She had episodes of feeling unable to breathe, which lasted several seconds and then followed by hyperventilating. She got relief by using an inhaler. The examiner found that the Veteran's asthma had required three intermittent courses or "bursts" of systemic corticosteroids over the past year, and daily use of oral bronchodilators. It had also required antibiotics such as Amoxicillin, Augmentin, Z-pack, and Levaquin. The examiner did not find that the Veteran's asthma required daily use of systemic high dose corticosteroids or immuno-suppressive medications. It did not require oxygen therapy. A PFT showedpost-bronchodilator an FEV-1 of 80 percent of predicted value and an FEV-1/FVC of 102 percent of predicted value. The May 2014 VA examination report reflects a finding that the Veteran's asthma required four or more courses or bursts of systemic corticosteroids. In this regard, she reported at least four exacerbations of asthma requiring Prednisone in the past year. It also required daily inhalation bronchodilator therapy and inhalational anti-inflammatory medication. It did not require antibiotics. The examiner did not find that the Veteran's asthma required daily use of systemic high dose corticosteroids or immuno-suppressive medications. It did not require oxygen therapy. A PFT showedpost-bronchodilatoran FEV-1 of 81 percent of predicted value and an FEV-1/FVC of 105 percent of predicted value. The September 2018 VA examination report reflects that the Veteran denied significant changes in her asthma symptoms. She continued to use medications. Based on a review of the claims file and examination of the Veteran, the examiner found that the Veteran's asthma did not require the use of oral or parental corticosteroid medications. It did not require the use of oral bronchodilators. It did not require antibiotics. It did not require oxygen therapy. A PFT was performed in October 2018 as part of this examination. The PFT showed, pre-bronchodilator, an FEV-1 of 77 percent of predicted value, and an FEV-1/FVC of 108 percent of predicted value post-bronchodilator. Because the post-bronchodilator result was poorer for the FEV-1, the pre-bronchodilator result is used for rating purposes. See 38 C.F.R. § 4.96(d)(5). In June 2020, a review of the Veteran's medical records was conducted by a VA examiner for purposes of evaluating the severity of her asthma. The June 2020 report of this review confirms the finding that the Veteran's asthma did not require oral or parental corticosteroids. It did require daily inhalational bronchodilator therapy and inhalational anti-inflammatory medication. It did not require oral bronchodilators or antibiotics. The October 2020 VA examination report reflects that the Veteran's asthma symptoms were mostly stable if she used nebulizers. She had periodic flares requiring steroids. The examiner found that it required intermittent courses, or bursts, of systemic corticosteroids once in the past twelve months. It required daily inhalational bronchodilator therapy, and daily inhalational anti-inflammatory medication. It required daily oral bronchodilators. It did not require antibiotics or oxygen therapy. It required physician care for exacerbations less frequently than monthly over the past twelve months. A PFT was not performed at this time. The VA treatment records show occasional prescriptions of Prednisone, an oral corticosteroid, from 2011 through 2013. More specifically, they show that the Veteran had an acute exacerbation of asthma in November 2011 when she ran out of her inhaler medication. She could not take a deep breath. She was prescribed Prednisone at that time, as well as inhalers. She was also prescribed Prednisone in May 2013, with instructions to begin it five days prior to her June 2013 septoplasty surgery for a deviated nasal septum. In this regard, it was noted that the Veteran had a history of asthma flares. In other words, it was prescribed prophylactically, and not because she was experiencing a flare-up at the time. In August 2013, she sent an email stating that she did not feel well and requested a prescription of an antibiotic and Prednisone. In that regard, she wrote that her chest felt like a rubber band was wrapped around it. The Prednisone prescription was renewed in September 2013. Thereafter, the VA treatment records do not show prescriptions for Prednisone or oral or parenteral corticosteroids for her asthma. A March 2019 VA treatment record notes that with regard to her asthma, she continued to have occasional shortness of breath with activity, and a dry cough. She reported using Prednisone 10mg, as needed ("prn") instead of Albuterol, stating that she did well on steroids. However, the VA treatment records do not show active prescriptions for Prednisone since 2013. A September 2019 record states she was no longer using Prednisone, and instead using Symbicort and other inhalers. A December 2019 record states that the Veteran was "[d]oing much better," and had only occasional shortness of breath with activity and a dry cough. She was no longer using Prednisone. In addition, VA treatment records dated from September 2014 through March 2017 note a diagnosis of asthma "without mention of status asthmaticus or acute [exacerbations]" and which was controlled with inhalers. Record dated in September 2015 and March 2017 note that she denied shortness of breath ("sob"). The record shows that prior to June 19, 2020, the criteria for a rating higher than 60 percent were not met. The Veteran's asthma was not manifested by an FEV-1 less than 40 percent of predicted value, or an FEV-1/FVC of less than 40 percent. It did not require daily use of systemic high dose corticosteroids or immuno-suppressive medications. It was not manifested by more than one attack per week with episodes of respiratory failure. Accordingly, the criteria for a 100 percent rating, which is the only evaluation higher than 60 percent for asthma under the schedular criteria, were not met during that period. The evaluation of the Veteran's asthma has been reduced from 60 percent to 30 percent (but assigned a 50 percent rating by evaluating it in conjunction with her sleep apnea, as discussed below) effective June 19, 2020, which is the date of the VA examination report confirming based on the examiner's review of the record, including the September 2018 VA examination report and the VA treatment records, that the criteria for a rating higher than 30 percent are no longer satisfied. The Board finds that the rating reduction from 60 percent to 30 percent effective June 19, 2020 is proper, for the reasons that follow. Preliminarily, because the reduced evaluation of the Veteran's asthma did not result in a reduction or discontinuance of compensation payments, advanced notice of the reduction and a 60-day waiting period before effectuating the reduction were not required. See 38 C.F.R. § 3.105(e); VAOPGCPREC 71-91 (Nov. 1991). When a rating has continued for a long period of time at the same level (five years or longer), it is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete. 38 C.F.R. § 3.344. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Id. Rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with VA law. Id. Ratings for diseases subject to temporary or episodic improvement, including bronchial asthma, will not be reduced on any one examination, except in those instances where all the evidence of record warrants the conclusion that sustained improvement has been demonstrated. Id. Moreover, though there may be material improvement in the disability at issue, the rating agency must consider whether the evidence makes it reasonably certain that the condition will be maintained under the ordinary conditions of daily life. Id. If doubt remains, the rating agency will continue the rating in effect, and then determine how much time it will allow to elapse, as specified in the regulation, before reexamination will be made. 38 C.F.R. § 3.344(b). In interpreting § 3.344, the United States Court of Appeals for Veterans Claims (Court) held that to warrant a reduction, it must be determined not only that an improvement in a disability has occurred, but that such improvement reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). VA is required to establish by a preponderance of evidence that the rating reduction is warranted. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction in rating must be based upon review of the entire history of a veteran's disability. Brown, 5 Vet. App. at 420; see also 38 C.F.R. § 3.344(a). VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations. Faust v. West, 13 Vet. App. 342, 349 (2000); Tucker v. Derwinski, 2 Vet. App. 201 (1992). A reduced evaluation contemplates a situation where an actual change in the disability has occurred and not merely a difference in thoroughness of the examinations or in use of descriptive terms. Brown, 5 Vet. App. at 420-21. In sum, three questions must be addressed in determining whether a rating reduction was warranted by the evidence. Id. at 421. First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability." Id. Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Id. Third, it must be determined whether the improvement reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Id. In a recent precedential decision, the United States Court of Appeals for Veterans Claims (Court) held that when the Board, in reducing a non-protected rating, fails to conduct the analysis required by Brown as to whether the improvement in the disability reflects an actual improvement in the ability to function under the ordinary conditions of life and work, the proper remedy is reversal of the Board's decision and reinstatement of the disability rating. Stern v. McDonough (No. 18-4425) (2021 U.S. App. Vet. Claims LEXIS 677). The reduction of a rating must have been supported by the evidence on file at the time of the reduction, rather than only by post-reduction evidence; however, pertinent post-reduction evidence favorable to restoring the rating must also be considered and may show that the rating reduction was improper. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The Board finds that the preponderance of all the evidence of record, including the September 2018 VA examination report, the June 2020 review of the record by a VA examiner, and the VA treatment records dating from 2013 to 2020, show sustained actual improvement in the Veteran's asthma, both in terms of the rating criteria and in terms of the ability to function under the ordinary conditions of life and work, since well before the June 2020 effective date of the reduction. The 60 percent rating was awarded, effective November 16, 2011, based on a finding that the Veteran's asthma required three or more courses of systemic corticosteroids. See May 2012 Rating Decision. Subsequent to 2013, the VA treatment records show that the Veteran has not sought treatment for an exacerbation of asthma symptoms, and has not been prescribed three or more courses of systemic corticosteroids. Indeed, they show findings from 2014 through 2017 that the Veteran's asthma was not manifested by acute exacerbations, and controlled by inhalers. Records dated in September 2015 and March 2017 note that she denied shortness of breath, and the December 2019 record states that the Veteran was "[d]oing much better" with regard to her asthma, and had only occasional shortness of breath with activity and a dry cough. In addition, the September 2018 VA examination is at least as thorough as the prior examinations on which the 60 percent rating was based; it includes a PFT test, a determination by the examiner as to whether the Veteran's asthma has required three or more courses per year of oral corticosteroids, and all other findings pertinent to evaluating the Veteran's asthma under the rating criteria, as shown above. The Board notes that the June 2020 VA examination report, the date of which constitutes the effective date of the rating reduction, consisted only of a review of the record. However, it essentially confirms the findings in the September 2018 VA examination report and what is shown in the VA treatment records. Indeed, as noted above, the 60-percent rating assigned the Veteran's asthma was not based on clinical findings on examination, such as PFT results, but on the fact that it required three or more courses per year of systemic corticosteroids, according to the February 2012 VA examination report. Importantly, an exception to the prohibition of reducing a rating on any one examination is where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. § 3.344(a). Here, the VA treatment records spanning years of treatmentfrom 2013 through 2020consistently show that the Veteran has not had exacerbations of asthma symptoms, that is has not required three or more courses of systemic (i.e. oral or parental) corticosteroids, and that it has generally been controlled by inhalers. The December 2019 VA treatment record reflects that the Veteran reported doing "much better" with regard to her asthma, and records dated in September 2015 and March 2017 note that she denied shortness of breath. With regard to the Veteran's PFT results, it is important to reiterate that the 60 percent rating, which was awarded effective November 16, 2011, was not based on such results, but on the finding in the February 2012 VA examination report that the Veteran's asthma required three courses per year of systemic corticosteroids. The PFT's from February 2012 to September 2018 consistently show that the Veteran's FEV-1 and FEV-1/FVC results have been above 70 percent. Therefore, they have not met the criteria for a rating higher than 30 percent. For that reason, the Board finds that the September 2018 PFT, which is consistent with the prior PFT results showing that the criteria for a 60-percent rating were not met based on such results, is sufficient to conclude that further PFT testing is not necessary to determine whether a rating reduction is warranted, since the 60-percent rating was not based on those results. The September 2018 and June VA examination reports confirm based on the examiners' review of the Veteran's medical records that her asthma has not required at least three courses per year of systemic corticosteroids. As just discussed, the VA treatment records are consistent with those findings, in that they show that the Veteran has not had monthly visits to a physician for required care of exacerbations, and that her asthma has not been treated with three or more courses of systemic corticosteroids in a twelve-month period; indeed, she has not been prescribed Prednisone or another systemic corticosteroid since 2013. The Board notes that the finding in the May 2014 VA examination report that the Veteran's asthma required three or more courses of systemic corticosteroids in the past twelve months was not based on records dated since September 2013, which are negative for prescriptions of Prednisone or other oral or parental corticosteroids to treat her asthma. Rather, the twelve-month period extended back to May 2013. Moreover, the examiner's finding was apparently based solely on the Veteran's self-report: "[The] Veteran reports at least 4 exacerbations requiring Prednisone this year." Finally, the preponderance of all the evidence shows sustained improvement in the Veteran's ability to function under the ordinary conditions of life and work with regard to her asthma. The records from 2014 to 2020, spanning a period of more than six years, show that she has generally not sought treatment for asthma exacerbations or required systemic corticosteroids during that period. A September 2019 VA neurology treatment record reflects that she was able to do house chores. At times she needed assistance from the housekeeper, but this was not attributed to her asthma symptoms. A December 2019 VA treatment record reflects that she walked two to three days per week. A March 2017 VA treatment record states that she was "walking a lot lately" and was stretching before and after walking and working out. The Board has considered the fact that the Veteran stopped working in November 2014. However, that does not alter the Board's conclusion. She stopped working due to migraines and brain surgery, not because of her asthma symptoms. See June 2015 Private Psychiatric Examination. Moreover, her asthma improved while she was still working. In this regard, the VA treatment records show that she has not been prescribed Prednisone or other corticosteroids since September 2013, and that she has not sought treatment for exacerbation since that date. Records dated in September 2014 and November 2014 specifically state that she has not had acute asthma exacerbations. Thus, her asthma improved during her employment. In other words, there is no indication that the Veteran's asthma improved because she stopped working, so as to suggest that the improvement does not reflect sustained improvement under the ordinary conditions of life and work. As the Veteran has not been hospitalized for a prolonged period, has not resided in an assisted living care facility, and has not been placed on bed rest for prolonged periods of time from 2014 to 2020, but rather has continued to live at home and engage in activities such as chores and walking, the Board finds that the improvement in her asthma reflects actual improvement in functioning under the ordinary conditions of life. That finding is further supported by the fact that the improvement has been sustained for a number of years. The Board notes in this regard that the Veteran has had other physical limitations stemming from other conditions, such as migraines and a disability of the back. However, the record does not indicate that her asthma improved as a consequence of reduced activity. Indeed, her asthma exacerbations recorded in earlier records were not attributed to physical activityor greater physical activity than she has been able to engage in since 2013 but instead to factors such as being out of inhaler medication (November 2011 VA treatment record) or illness (August 2013 VA treatment note reflecting her request for a renewal of Prednisone). Finally, the Veteran's improvement in functioning reflects actual sustained improvement, and not just a temporary remission or episodic improvement in her symptoms. As just discussed, the VA treatment records from late 2013 to 2020, a period of about seven years, consistently reflect that improvement, and thus establish that it has been sustained for years. In sum, the preponderance of all the evidence shows sustained actual improvement in the Veteran's asthma, both in terms of the applicable rating criteria and in terms of her ability to function under the ordinary conditions of life and work since at least 2014, and thus well before the June 19, 2020 effective date of the reduction. Accordingly, the rating reduction from 60 percent to 30 percent was proper under the provisions of §3.344(a) and the applicable rating criteria. The evidence shows that the criteria for a rating higher than 30 percent since June 19, 2029 have not otherwise been met. In its discussion of why the rating reduction was proper, the Board has explained why the criteria for a 60 percent rating, which is the next higher evaluation, have not been met since at least June 19, 2020. With regard to the distinct criteria for a 100 percent rating (that is, apart from the FEV-1 and FEV-1/FVC results or the requirement of three or more courses of systemic corticosteroids), the Veteran's asthma has not required daily use of immuno-suppressive medications, and has not been manifested by more than one attack per week with episodes of respiratory failure. Accordingly, since at least June 19, 2020, the criteria for a rating higher than 30 percent have not been met. See 38 C.F.R. § 4.97, DC 6602. As noted above, effective June 19, 2020, the Veteran's asthma is not assigned a rating under DC 6602. Instead, a single rating of 50 percent has been assigned under DC 6847, which pertains to sleep apnea, for the Veteran's asthma and sleep apnea conditions together. In this regard, co-existing respiratory conditions rated under diagnostic codes 6600 through 6817, and 6822 through 6847 will not be combined with each other. 38 C.F.R. § 4.96(a). Instead, a single rating will be assigned under the diagnostic code which reflects the predominant disability, with evaluation to the next higher evaluation where the severity of the overall disability warrants such evaluation. Id. The 50-percent rating assigned by rating the Veteran's asthma and sleep apnea under DC 6847 is more favorable than the converse namely, rating sleep apnea and asthma under DC 6602 and assigning a 30 percent rating. As the maximum rating has been assigned under DC 6847, and as the Veteran's asthma has not met or more nearly approximated the criteria for a 60 percent rating under DC 6602, the Board finds that elevation of the 50-percent rating to the next higher evaluation is not appropriate. Because the preponderance of the evidence is against a rating higher than 60 percent prior to June 19, 2020, and higher than 50 percent as of that date, for the Veteran's asthma and sleep apnea, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Evaluation of Psychiatric Disorder For the following reasons, the Board finds that an initial rating higher than 30 percent prior to August 16, 2013, and higher than 50 percent as of that date, for the Veteran's adjustment disorder with mixed anxiety and depressed mood have not been met. A. Rating Criteria The Veteran's service-connected adjustment disorder with mixed anxiety and depressed mood is rated under DC 9440, which pertains to adjustment disorder. 38 C.F.R. § 4.130. Almost all mental health disorders (with exceptions not applicable here) are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. Id. Under the General Rating Formula, a 10 percent disability rating requires: Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent disability rating requires: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events). A 50 percent disability rating requires: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating requires: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting; inability to establish and maintain effective relationships.) A 100 percent disability rating requires: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. Id. Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). Id. at 443; see 38 C.F.R. § 4.130. If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In sum, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. Vazquez-Claudio, 713 F.3d at 118. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126(b). B. Analysis The February 2012 VA examination report reflects a diagnosis of adjustment disorder with anxiety. The examiner found that the Veteran's symptoms for rating purposes were anxiety and chronic sleep impairment, which caused occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran had been married for twelve years, and characterized her relationship with her husband as "great." She had two children, and reported good relationships with them. She had a circle of friends. She worked full time. She did not have active hobbies or leisure activities, stating that she had little time for anything other than school, work, and taking care of her children. She reported stress associated with her husband's medical condition and her own medical conditions, as well as financial issues. She had difficulty falling asleep, in part due to rumination over her worries. She was frequently tired. She experienced irritability only when driving. The May 2014 VA examination report reflects a diagnosis of adjustment disorder with mixed anxiety and depressed mood. The examiner found that the Veteran's symptoms for rating purposes were depressed mood, anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The examiner found that these symptoms caused occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. At the examination, the Veteran was depressed and tearful. Her memory, insight, and judgment were intact. She was well oriented to place, person, and situation. She made good eye contact. She did not have suicidal or homicidal thoughts, and did not have delusions or hallucinations. A June 2015 private psychiatric examination report reflects that the Veteran left her job in November 2014 due to migraines and undergoing brain surgery. She denied having any interpersonal problems on the job. On mental status examination, the Veteran's concentration was fair, and her attention span normal. Her psychomotor activity was normal. Her speech patterns were hesitant, uncertain, and tangential. Her affect was normal. She described her mood as "more sad," and stated that she "stay[s] pretty depressed" with regard to her usual mood. She stated that she felt depressed most of the time for months at a time, and now on a daily basis. She admitted emotional lability in the form of crying spells and temper outbursts. She stated that she "started feeling like killing herself about [two years] ago." She had made no attempts, and continued to have these feelings, but did not think she "would really do it." She reported experiencing a low energy level and draining fatigue about three times per week. She reported "psychomotor pressure on a daily basis," with "crying, angry and bored and anxiety described as 'nervous' [sic]." She felt anxious about two times per week. It lasted for about twenty minutes. She reported anger problems, especially road rage, and felt like harming others but denied any history of assault or plan. The examiner found that the Veteran's judgment tended to be good, and her insight fair. Her memory was broadly intact. Her associations were relevant and the stream of thought normal. She had insomnia. The examiner diagnosed major depressive disorder with anxiety. The VA treatment records reflect that in April 2016, the Veteran reported feeling depressed. She denied suicidal ideation or homicidal ideation. In May 2016, the Veteran was seen for an initial mental health consultation. She reported having been referred for mental health counselling in the past, but had never followed through with services. The current reason for referral was anxiety. She lived with her husband, and also with her two sons when they were not away at college. Her presenting problem was depression and anxiety related to her medical problems and chronic issues with migraines and headaches, which caused significant functional limitations that she stated prevented her from working, going to school, or engaging in hobbies. She reported no past or present suicidal ideation, homicidal ideation, self-harming behaviors, or psychosis. The Veteran appeared well-groomed, neat in appearance, and clean, and made good eye contact. She was alert and oriented. Her attitude was friendly, cooperative, interested, and attentive. Her mood was congruent. Her affect normal. There was no abnormality of thought content. Her thought process was appropriate. She exhibited "intellectual" and "true" insight. Her judgment was logical. Her speech was of normal flow and content. The Veteran was diagnosed with unspecified depressive disorder and anxiety disorder. Later in May 2016 the Veteran was seen for a follow-up mental health counseling appointment. She reported that since the last session she had the same levels of depression and anxiety related to her chronic medical condition of constant headaches and migraines. She related having tension with her husband due to her physical limitations. A June 2016 mental health counseling record reflects similar symptoms and issues as those described in her earlier sessions, including problems with her marriage due to her inability to go out and do things stemming from her physical condition, and her frustration with not being able to be physically active. The VA treatment records show that the Veteran missed a scheduled mental health appointment in July 2016, and did not resume her counseling sessions thereafter. The September 2018 VA examination report reflects a diagnosis of adjustment disorder with mixed anxiety and depressed mood. The examiner found that the Veteran's symptoms for rating purposes were depressed mood, anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. The examiner found that these symptoms caused occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported living with her husband and one of her sons. He had close relationships with her husband and sons, but indicated that she is often irritable. She often isolated herself when she was irritable, and did so "pretty much every day." She had one close friend. She did not socialize as much as she did in the past. She was at home most of the time. She was unemployed, and stated she last worked in 2014, but stopped because she had two surgeries and thus was "medically retired." She stated she was depressed about six days a week. She reported low energy, crying spells (once or twice a month), and feelings of worthlessness and hopelessness. She denied suicidal ideation. She had mild difficulty concentrating. She had anxiety episodes where it felt she could not breathe, her heart sped up, her chest hurt, becoming tight, she became very emotional, and her thoughts would not slow down; these occurred "a couple of times a month" and lasted approximately 20 minutes. She reported sleep disturbance consisting of initial and middle insomnia. She got approximately three to four hours of sleep per night. On examination, the Veteran's appearance was casual and appropriate. She was alert and oriented in all spheres. Her psychomotor activity was unremarkable. She was cooperative and friendly. Her thought process was unremarkable. She denied suicidal and homicidal ideation. Her speech was within normal limits. She did not report perceptual abnormalities, and none were observed. Her mood was depressed. Her affect appropriate. Her insight and judgment were adequate. The October 2020 VA examination report reflects that for rating purposes the Veteran's psychiatric symptoms were depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner found that the Veteran's psychiatric disorder caused occupational and social impairment with reduced reliability and productivity. When asked if emotional difficulties contributed to marital problems, she responded that her husband expressed concern about her moodiness, irritability, and social isolation. She stated that he said she was "not the same person." Regarding work, she had been retired since 2014. She stated that when she had been employed, she sometimes used sick leave as a way of managing her anxiety and depression. The Board finds that the criteria for an initial rating higher than 30 percent prior to August 16, 2013, and higher than 50 percent as of that date, for the Veteran's adjustment disorder with mixed anxiety and depressed mood have not been met during the period under review. The Board notes that the RO assigned a 50-percent rating effective August 16, 2013 because it found that to be the date of claim. See June 2014 Rating Decision. Prior to the October 2020 VA examination report, the VA examiners consistently found that the Veteran's psychiatric disorder caused occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although she was generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. That level of occupational and social impairment most closely corresponds to the criteria for a 30 percent rating. Prior to August 16, 2013, the Veteran's symptoms, as recorded in the February 2012 VA examination report, were anxiety and chronic sleep impairment. Those symptoms correspond to the criteria for a 30 percent rating. Thus, prior to August 16, 2013, the criteria for a rating higher than 30 percent were not met or more nearly approximated. Since August 16, 2013, the VA examination report show symptoms and functional impairment corresponding to a 50 percent rating or lower. The VA examination reports are probative, as they represent the findings of mental health professionals based on examination of the Veteran and review of her medical history. The Board notes that the June 2015 private psychiatric examination report reflects that the Veteran "started feeling like killing herself about [two years] ago." She had made no attempts, and continued to have these feelings, but did not think she "would really do it." Suicidal ideation, regardless of whether there is "evidence of more than thought or thoughts," is a symptom corresponding to a 70 percent rating. See 38 C.F.R. § 4.130, General Rating Formula. Bankhead v. Shulkin, 29 Vet. App. 10, 21-22 (2017). However, the Board finds that this report alone does not satisfy the criteria for a 70 percent rating. Id. at 22 (clarifying the "presence or absence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level" (citing Vazquez-Claudio, 713 F.3d at 115) (emphasis in original). As an initial matter, the Board observes that prior to and subsequent to this report, the VA examination reports consistently show that she did not have suicidal ideation. Indeed, according to the May 2016 VA psychiatric treatment record, she reported no past or present suicidal ideation. Similarly, she denied suicidal ideation in the April 2016 VA treatment record, in the context of reporting that she felt depressed. Moreover, and dispositive of the issue, the Veteran's reported suicidal ideation in the June 2015 private examination report is not shown to have caused occupational and social impairment with deficiencies in most areas, including work, school, family relations, judgment, thinking, or mood. The record shows that prior to her retirement in 2014, which was for reasons unrelated to her psychiatric disorder, she worked full time. No deficiencies in her judgement or thinking have been noted. Rather, her judgment has generally been found to be intact, and no abnormalities in thought process or content have been identified. The Veteran has also generally reported positive relations with her family, with the exception that there has been tension with her husband due to her physical conditions, which have significantly limited her ability to participate in activities such as going out. While the Veteran reported at the October 2020 VA examination that she had used sick leave while employed as way of managing her anxiety and depression, that in itself does not indicate more severe impairment than "reduced reliability and productivity" or "intermittent periods of inability to perform occupational tasks," which represent occupational impairment corresponding to a 50-percent rating and 30-percent rating, respectively. Importantly, "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." 38 C.F.R. § 4.2. As the suicidal ideation recorded in the June 2015 private examination report is not shown to cause the degree of occupational and social impairment corresponding to a 70 percent ratingeither alone or in conjunction with her other psychiatric symptomsand as the Veteran's psychiatric disorder is not otherwise shown to cause that degree of functional impairment, the criteria for a 70 percent rating, including on a staged basis, have not been satisfied. The Veteran's symptoms do not otherwise match or equate in severity, frequency, and duration to the symptoms listed for a 70 percent or 100 percent rating. On the contrary, they are readily captured by the symptoms listed for 50- and 30-percent ratings, and thus most closely correspond to a rating of 50 percent or lower. In this regard, while the Veteran has reported frequent depression, anxiety, and panic attacks occurring weekly or less often, the record shows that she has not had near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. Her depressed mood, anxiety, and panic attacks that occur weekly or less often correspond to the criteria for a 30 percent rating, which contemplates those specific symptoms. Similarly, she has reported irritability, but is not shown to have unprovoked irritability with periods of violence. See 38 C.F.R. § 4.130, General Rating Formula. Thus, her irritability does not equate in severity to the symptom contemplated by a 70 percent rating. The Veteran's symptoms are not otherwise shown to match or to be equivalent in severity, frequency, and duration to the symptoms corresponding to a 70 percent or 100 percent rating. As shown above, they correspond to the criteria for a 50 percent or lower, with the exception of the one-time report of suicidal ideation in the June 2015 private examination report. The Board has already explained that because the Veteran's level of occupational and social impairment has not satisfied the criteria for a 70 percent rating, that evaluation may not be assigned based solely on her report of suicidal ideation at the time of the June 2015 private examination. See Vazquez-Claudio, 713 F.3d at 118; Bankhead, 29 Vet. App. at 22. Because the preponderance of the evidence is against higher ratings for the Veteran's adjustment disorder with mixed anxiety and depressed mood, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a rating higher than 20 percent prior to September 13, 2018, and higher than 40 percent as of that date, for a back disability is remanded. A VA examination to evaluate severity of the Veteran's service-connected back disability for compensation purposes was performed most recently in October 2020. The Board finds that the examination report is not sufficient to make an informed decision. In the report, the examiner estimated that during flare-ups, the Veteran would have 0 degrees of range of motion of the thoracolumbar spine in any direction flexion, extension, rotation, etc. No explanation was provided for that extreme finding, which seem implausible on its face, and in the context of the record as a whole. It is also inconsistent with the Veteran's characterization of her flare-ups as "moderate," according to the examination report. A flare-up preventing any degree of motion of the thoracolumbar spine would clearly not be moderate. The Board recognizes that the Veteran's back disability has been assigned a 40 percent rating since September 13, 2018, which is the maximum rating that may be assigned based on limitation of motion in itself. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), Diagnostic Codes 5235-5243. However, and significantly, a recent precedential decision of the United States Court of Appeals for Veterans Claims (Court) held that the requirement of establishing ankylosis under the General Rating Formula for purposes of assigning a higher rating can be met with evidence of the functional equivalent of ankylosis during a flare-up. Chavis v. McDonough, No 18-2928 (2021). The Court explained in this regard that ankylosis is defined as immobility of a joint, which, in essence, is complete limitation of motion. Id. Thus, an evaluation based on ankylosis may be assigned if there is functional loss that is the equivalent of ankylosis. Id. In light of Chavis, the examiner who conducted the October 2020 examination should be asked to clarify the estimate of 0 degrees of range of motion of the thoracolumbar spine during flare-ups, and to provide a complete explanation for that finding. If that examiner is not available, a different medical professional may provide the requested opinion. If necessary for that purpose, a new examination should be arranged. The matter is REMANDED for the following action: The examiner who conducted the October 2020 VA spine examination should be asked to clarify the estimate of 0 degrees of range of motion of the thoracolumbar spine (in any direction) during flare-ups, and to provide a complete explanation for that finding. If that examiner is not available, a different medical professional may provide the requested opinion. If necessary for that purpose, a new examination should be arranged. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.