Citation Nr: 21031606 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-42 816 DATE: May 24, 2021 ORDER An increased rating of higher than 30 percent from July 26, 2011 to March 2, 2017 for a respiratory disorder, to include asthma and bronchitis is denied. A 100 percent rating from March 3, 2017 and continuing thereafter for a respiratory disorder is granted. REMANDED The issue of a total disability rating based on individual unemployability (TDIU) due to service-connected disorders is remanded. FINDINGS OF FACT 1. From July 26, 2011 to March 2, 2017, pulmonary function testing revealed, at worst, FEV-1 at 104 percent predicted and FEV-1/FVC at 77 percent and the Veteran had not undergone monthly visits to a physician for required care of exacerbations or intermittent courses of systemic corticosteroids. 2. With resolution of the doubt in his favor, from March 3, 2017 and continuing thereafter, the Veteran was prescribed Budesonide a corticosteroid for oral inhalation two times per day and the November 2018 VA examiner indicated that the Veteran's respiratory disorder required daily use of immuno-suppressive medications. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent from July 26, 2011 to March 2, 2017 for a respiratory disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.27, 4.97, Diagnostic Code (DC) 6600-6602. 2. The criteria for a 100 percent rating from March 3, 2017 and continuing thereafter for a respiratory disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.27, 4.97, DC 6600-6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from November 1977 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Columbia, South Carolina Regional Office (RO). In March 2021, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. Increased Rating Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Disabilities are evaluated through diagnostic codes (DCs). Respiratory disorder Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The additional code is shown after the hyphen. Id. Under DC 6602, a 30 percent rating is warranted for asthma manifested by forced expiratory volume in one second (FEV-1) of 56- to 70-percent predicted, or; FEV-1/forced vital capacity (FVC) of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. 38 C.F.R. § 4.97, DC 6602. A 60 percent rating is warranted for asthma manifested by forced expiratory volume in one second (FEV-1) of 40 to 55 percent predicted, or; FEV-1/forced vital capacity (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. Id. A 100 percent rating is warranted for asthma manifested by 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 system (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Id. The regulation mandates that ratings under DCs 6600 through 6817 and 6822 through 6847 will not be combined with each other. Rather, a single rating will be assigned under the DC 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(a). Additionally, when evaluating a disability based on pulmonary function tests (PFTs), the post-bronchodilator results are to be used in applying the evaluation criteria in the rating schedule unless such are poorer than the pre-bronchodilator results. In such cases, the pre-bronchodilator values are to be used for rating purposes. 38 C.F.R. § 4.96(d)(5). The Veteran's respiratory disorder is rated noncompensable from December 1, 1997 to July 25, 2011 and 30 percent disabling from July 26, 2011 and continuing thereafter under DC 6600-6602. The appellate period is from July 26, 2011. Non-VA treatment records dated July 2011, May 2012, and March 2013 reflect the Veteran was prescribed albuterol as needed for wheezing and Asmanex Twisthaler inhalation aerosol powder. Albuterol is not considered a corticosteroid. https://medlineplus.gov/druginfo/meds/a682145.html ("Albuterol is in a class of medications called bronchodilators"). Asmanex Twisthaler is considered a corticosteroid. https://medline plus.gov/drug info/meds/a608035.html ("Momestasone Powder for oral inhalation (Asmanex Twisthaler) ... is in a class of medications called corticosteroids"). However, these records do not indicate whether the Veteran had to undergo intermittent (at least three per year) courses or daily use of Asmanex. A May 2013 non-VA treatment record reflects the Veteran was prescribed Advair Diskus inhalation powder. Advair Diskus is not considered a corticosteroid. https://medlineplus.gov/druginfo/meds/a699063.html ("The combination of fluticasone and salmeterol (Advair Diskus) . . . fluticasone is in a class of medications called steroids . . . salmeterol is in a class of medications called long-acting beta-agonists"). A May 2013 non-VA pulmonary function test (PFT) revealed pre-bronchodilator results of FEV-1 at 109 percent predicted and FEV-1/FVC at 77 percent; however, no post-bronchodilator results were provided. A June 2013 non-VA PFT revealed pre-bronchodilator results of FEV-1 at 108 percent predicted and FEV-1/FVC at 81 percent; and post-bronchodilator results of FEV-1 at 109 percent predicted and FEV-1/FVC at 83 percent. A June 2013 VA examiner indicated that the Veteran's respiratory disorder did not require the use of oral parenteral corticosteroid medication. The Veteran needed daily use of both inhalation bronchodilator therapy and oral bronchodilators. The Veteran did not require the use of antibiotics or outpatient oxygen therapy. The Veteran did not have asthma with episodes of respiratory failure in the past 12 months and the Veteran underwent physician visits for care of exacerbations less frequently than monthly. The examiner did not conduct PFT testing and referenced PFT testing conducted outside the appellate period in February 1999. A September 2013 non-VA treatment record reflects the Veteran was prescribed Dulera, Singulair, and albuterol. The Veteran did not require antibiotics. PFT revealed pre-bronchodilator results of FEV-1 at 104 percent predicted and FEV-1/FVC at 80 percent; however, no post-bronchodilator results were provided. An October 2013 non-VA treatment reflects the Veteran was prescribed Advair Diskus one inhalation two times daily and albuterol sulfate two inhalation four times daily as needed for wheezing. During a January 2016 VA examination, the Veteran reported wheezing, air hunger, and dyspnea on exertion. He used Singulair and inhalers three times per day. The Veteran required daily use of inhaled medication such as bronchodilator therapy, inhalation anti-inflammatory medication, and oral bronchodilators. The Veteran did not require antibiotics or outpatient oxygen therapy. The Veteran had not had any asthma attacks with episodes of respiratory failure in the past 12 months and had not had physician visits for required care of exacerbations. The examiner did not conduct PFT testing and indicated that the Veteran's September 2013 non-VA PFT pre-bronchodilator results most accurately reflected the Veteran's then-current level of disability. A March 2017 VA treatment reflects the Veteran was prescribed Albuterol four puffs per day as needed for wheezing and Budesonide oral inhalation two times per day. Budesonide is a corticosteroid. https://medline plus.gov/druginfo/meds/a699056.html ("Budesonide belongs to a class of medications called corticosteroids"). A September 2018 non-VA PFT testing revealed pre-bronchodilator results of FEV-1 at 106 percent predicted and FEV-1/FVC at 107 percent; however, no post-bronchodilators results were provided. An October 2018 non-VA PFT testing revealed pre-bronchodilator results of FEV-1 at 108 percent predicted and FEV-1/FVC at 112 percent; however, no post-bronchodilator results were provided. In a November 2018 VA examination, the Veteran reported wheezing and shortness of breath. The Veteran reported using Dulera, Qvar, Proair, Prednisone, and Fasenra. The Veteran's respiratory disorder required chronic low dose (maintenance) corticosteroids, intermittent courses or bursts of systemic corticosteroids, and daily use of system (oral or parenteral) immuno-suppressive medications. The Veteran also required daily use of inhalational bronchodilator therapy, inhalational anti-inflammatory medication, oral bronchodilators, and antibiotics. The Veteran had not had any asthma attacks with episodes of respiratory failure in the past 12 months. The Veteran had physician visits for required care of exacerbations three to four times per year described by the examiner as less frequently than monthly. A preponderance of the evidence is against a finding of an increased rating higher than 30 percent from July 26, 2011 to March 2, 2017 for the Veteran's respiratory disorder under DC 6600-6602. Throughout this portion of the appellate period, pulmonary function testing revealed, at worst, FEV-1 at 104 percent predicted and FEV-1/FVC at 77 percent. The June 2013 and January 2016 VA examiners had not indicated that the Veteran underwent monthly visits to a physician for required care of exacerbations or underwent intermittent courses of systemic corticosteroids. Although a July 2011 non-VA treatment record reflects that the Veteran was prescribed Asmanex Twisthaler inhalation aerosol powder a corticosteroid the record did not indicate whether the Veteran had to undergo intermittent (at least three per year) courses or daily use of Asmanex. Therefore, an increased rating is not warranted and the claim is denied. In his March 2021 Board hearing, the Veteran testified that his respiratory disorder had worsened. A remand for a VA examination is not warranted because the Board will grant a 100 percent maximum rating from March 3, 2017 and continuing thereafter. The Board will grant a 100 percent increased rating from March 3, 2017 and continuing thereafter for the Veteran's respiratory disorder under DC 6600-6602 based on the benefit-of-the-doubt doctrine. Although non-VA pulmonary function testing dated September 2018 and October 2018 did not reflect the FEV-1 or FEV-1/FVC percentages required for a 100 percent rating, a VA treatment record dated March 3, 2017 reflects the Veteran having been prescribed Budesonide a corticosteroid for oral inhalation two times per day and the November 2018 VA examiner indicated that the Veteran's respiratory disorder required daily use of immuno-suppressive medications. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an increased rating is warranted and the claim is granted. REASONS FOR REMAND The remaining matter is remanded for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR Although the November 2018 VA examiner indicated that the Veteran's respiratory disorder did not affect his ability to work, the June 2013 and January 2016 VA examiners indicated otherwise. The issue of entitlement to a TDIU has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). Remand is warranted for due process development for the issue of TDIU prior to appellate consideration, including adjudication by the RO and to obtain relevant social security administration records as to the claim for a TDIU. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321 (2010). Social security administration records dated July 2016 reflect that the Veteran was then-currently employed as a registered nurse. In his March 2021 Board hearing, the Veteran reported having been unemployed since June 2019. The claims file does not contain updated social security administration records and the Veteran has not submitted a VA Form 21-8940, Application for Increased Compensation Based On Unemployability. 2. Obtain social security records relevant to the Veteran's service-connected respiratory disorder, diverticulitis, ventral hernia, low back disorder, tinnitus, hemorrhoids, right ankle disorder, abdominal scar, and right upper quadrant surgical scar. 3. Provide appropriate VCAA notice concerning the claim for a TDIU. 4. Ask the Veteran to complete and return a VA Form 21-8940, Application for Increased Compensation Based On Unemployability, and/or other documents containing the necessary employment and education history. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Associate 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.