Citation Nr: 21039819 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-24 252 DATE: July 1, 2021 ORDER Entitlement to a rating in excess of 60 percent for asthma with chronic obstructive pulmonary disorder (COPD) is denied. FINDING OF FACT The Veteran's asthma with COPD is not manifested by FEV-1 of less than 40 percent predicted; FEV-1/FVC of less than 40 percent; or more than one attack per week with episodes of respiratory failure, or where the use of systemic high dose corticosteroids or immunosuppressive medications are required daily. CONCLUSION OF LAW The criteria for a disability rating in excess of 60 percent for asthma with COPD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to September 1981. This matter is on appeal from a March 2015 rating decision of the Department of Veterans Affairs Regional Office (RO). Increased Rating The Veteran asserts that he is entitled to a rating in excess of 60 percent for his service-connected asthma with COPD, specifically contending that he takes several medications to control his symptoms including Xolair (omalizumab) injections every three weeks, which is administered under a physician's care and is use when high doses of corticosteroids do not control symptoms. See June 2021 Correspondence. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently rated at 60 percent for his service-connected asthma with COPD pursuant to Diagnostic Code 6602. As the Veteran filed his claim for an increased rating on September 25, 2014, the relevant temporal focus is one year prior to the date of receipt of the claim. Diagnostic Code 6602, the applicable rating code for asthma, provides for a 60 percent rating is warranted where FEV-1 is 40 to 55 percent predicted; FEV-1/FVC of 40 to 55 percent; or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent disability rating is warranted where FEV-1 of less than 40 percent predicted; FEV-1/FVC of less than 40 percent; or more than one attack per week with episodes of respiratory failure, or where the use of systemic high dose corticosteroids or immunosuppressive medications are required daily. 38 C.F.R. § 4.97, Diagnostic Code 6602. The post-bronchodilator findings for these PFTs are the standard in pulmonary assessment. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilation). However, if the post-bronchodilator results are poorer than the pre-bronchodilator results, then the pre-bronchodilator results are used for rating purposes. See 38 C.F.R. § 4.96 (d)(5). The report of an October 2013 pulmonary function test (PFT) noted the Veteran's FEV-1 was 58 percent, predicted and the FEV-1/FVC was 55 percent. See October 2013 VA Treatment Record. The January 2015 VA examination noted the use of daily inhalation medications. The PFT referenced was the one conducted in October 2013, discussed above. No further medical findings were noted. An August 2015 private PFT report showed FEV-1 of 79 percent predicted, and FEC-1/FVC of 79 percent. Additional VA PFT reports noted FEV-1 values of 67 percent and 81 percent in September 2017 and March 2018, respectively. The Veteran was most recently examined by VA April 2019. At that time, it was noted that the Veteran receives intermittent courses or bursts of systemic corticosteroids, 4 or more in the past year, and also non-steroid medication in the form of subcutaneous injections (Xolair), every 3 weeks. Neither of these medications are administered daily. His FEV-1 was 87 percent, both pre and post-bronchodilator. There is also no indication he suffers from one attack per week of respiratory failure. Based on the evidnece as discussed above, the Board concluded that the Veteran is not entitled to a rating of 100 percent at any point during the appeals period. Specifically, the evidence does not show that he has FEV-1 of less than 40 percent predicted; FEV-1/FVC of less than 40 percent; or more than one attack per week with episodes of respiratory failure, or where the use of systemic high dose corticosteroids or immunosuppressive medications are required daily. See generally, January 2015 and April 2019 VA Examinations, VA Treatment Records, Private Treatment Records. The Board has considered whether a higher rating is available under any other potentially applicable provision of the rating schedule. However, the Board finds that a higher rating is not warranted based on any other provision of the rating schedule at any time throughout this period of appeal. (Continued on the next page) The Board has considered the Veteran's assertions as to the functional limitations due to his asthma symptoms; however, they are found to be of limited probative value in this case. The objective medical evidence, including the PFT results, is found to be more probative in determining that the service-connected respiratory disorder does not meet the criteria for a rating in excess of 60 percent at any point. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the assignment of any ratings higher than those currently assigned, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.