Citation Nr: 21041110 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-53 972 DATE: July 8, 2021 ORDER Entitlement to an increased rating of 60 percent effective February 3, 2016 for asthma is granted. Entitlement to an increased rating in excess of 60 percent from February 3, 2021 for asthma is denied. REMANDED Entitlement to service connection for allergic rhinitis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. Prior to February 3, 2021, the Veteran's asthma was manifested by intermittent (at least three per year) courses of systemic corticosteroids. 2. From February 3, 2021, the Veteran's asthma was not manifested by daily use of systemic high dose corticosteroids or immuno-suppressive medications. CONCLUSION OF LAW 1. The criteria for an increased rating of 60 percent for asthma from February 3, 2016 are met. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.97, Diagnostic Code (DC) 6602. 2. The criteria for an increased rating in excess of 60 percent for asthma from February 3, 2021 are not met. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.97, DC 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1997 to July 1997, from October 1997 to December 1997, from March 2003 to July 2003, from May 2005 to July 2005, March 2006 to December 2006, and from November 2008 to February 2009. These matters are on appeal from September 2016 rating decision from a Department of Veterans Affairs Regional Office. The Veteran had a hearing before the undersigned Veterans Law Judge in May 2020. A transcript has been associated with the file. These matters were previously before the Board and were remanded for further development in a July 2020 decision. This development has been completed and the matters are again before the Board. Increased Rating Claim Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran contends his asthma is worse than indicated by his 30 percent disability rating prior to February 3, 2021 and 60 percent thereafter. In October 2017, the Veteran said his asthma had gotten worse and that he uses medication. In his May 2020 hearing, the Veteran said he was prescribed medication for his asthma and used his rescue inhaler as needed and prednisone when he had really bad episodes. The Veteran said that he used steroids at least three times per year. The Veteran also said he went to the emergency room for his asthma at least twice in the past year and on average, has to go three or four times. The Veteran's asthma is evaluated under DC 6602. DC 6602 provides for a 30 percent rating is warranted where FEV-1 is 56 to 70 percent predicted; FEV-1/FVC is 56 to 70 percent; or there is daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. 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 on a daily basis. The Veteran had an examination for his asthma in March 2016. The examiner saw the Veteran in person and reviewed his file. The examiner noted the Veteran's condition required chronic low dose of corticosteroids and did required the use of inhaled medications and oral bronchodilators and occasional antibiotics but not oxygen theory. The Veteran had not had asthma attacks with episodes of respiratory failure in the past 12 months and had not visited his physician for exacerbations. The examiner said the Veteran's FEV-1/FVC levels, which was 79.2 percent predicted, most accurately reflected the Veteran's level of disability. The Veteran had another examination for his asthma in April 2021. The examiner reviewed the Veteran's file and saw him in person. The examiner noted the Veteran used inhalational bronchodilator therapy and his condition required the use of oral bronchodilators, but not antibiotics or oxygen therapy. The Veteran had not had asthma attacks with respiratory failure in the past 12 months or visits to his physician for exacerbations. The examiner said the Veteran's FEV-1/FVC level most accurately reflected the Veteran's level of disability. The Veteran's FEV-1/FVC legal was 85 percent predicted. In August 2016, the Veteran's FVC was 79 percent and 81 percent post bronchodilator, FEV-1 was 84 percent and 85 post bronchodilator and his FEV-1/FVC was 106 and 105 post bronchodilator. The examiner did not indicate which test most accurately reflected the Veteran's level of impairment. In August 2017, the Veteran reported three exacerbations and used an inhaler and it was noted he had mild persistent asthma. In October 2017, the Veteran reported no recent exacerbations and that his asthma was under control, but it was noted the Veteran had persistent asthma and was on inhaled steroids. In March and August 2018, it was noted the Veteran had exacerbations of his asthma and was prescribed prednisone. In February 2019, the Veteran had a recent exacerbation and was using an albuterol inhaler three to four times per week. In February 2020, the Veteran's FEV-1/FVC was 85 percent and in August 2020, the Veteran reported exacerbations in July which required steroids. In February 2021, it was noted the Veteran had exacerbations in November 2020 for which he was on steroids for a few days. Prior to February 3, 2021, the Board finds a higher rating of 60 percent is warranted for the Veteran's asthma. The Veteran's FEV-1 and FEV-1/FVC levels do not indicate a higher rating is warranted, however, the Veteran's examinations and treatment records clearly show he has been prescribed steroids for frequent exacerbations. The Veteran's condition also led him to the emergency room multiple times per year. Therefore, a 60 percent rating is most appropriate from February 2, 2016, the date of the claim. However, a higher 100 percent rating is not warranted prior to or from February 3, 2021. The Veteran's asthma, while clearly a problem, was not manifested by FEV-1 levels of 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. The Veteran's records also do not indicate that he requires daily use of systemic high dose corticosteroids or immuno-suppressive medications. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Regarding all the above, the Board acknowledges the Veteran's statements that he believes his asthma is worse than indicated by his disability ratings. The Board also acknowledges the Veteran continues to seek treatment for his condition. However, while the Veteran is competent to report symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his asthma. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board provides more weight to the competent objective evidence of record and has weighed it as discussed above. The Board finds the examinations discussed above to be adequate because the examiners saw the Veteran in person, reviewed her file, and conducted all appropriate tests necessary. While the Veteran's condition clearly bothers him a great deal, it is important for the Veteran to understand that this is the basis for the current findings. Regarding the Veteran's asthma, while it is clear it is a problem, it is also important for the Veteran to understand that this is the basis for the current findings and the ratings assigned. If his asthma did not cause him problems, there would be no basis for compensable ratings, or the grant of the higher evaluation, the only question is the degree. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). REASONS FOR REMAND The Board regrets the delay but finds a remand is warranted in the Veteran's claim to service connection for rhinitis. In the previous Board remand, an examination was to be obtained in order to determine the nature and etiology of the Veteran's rhinitis. An examination was obtained in February 2021 and an opinion as to etiology was obtained in April 2021. However, this examination, while stating the Veteran's record was reviewed, reported the Veteran did not have and never had a diagnosis of rhinitis. However, previous examiners noted a diagnosis and the Veteran's record contains mention of a diagnosis of this condition. Therefore, the Board finds this examination to be inadequate and another examination is needed in order to determine whether the Veteran has a diagnosis of rhinitis and if so, whether it is related to the Veteran's time in service. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board also finds that the matter of a TDIU has been raised by the record. The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This matter is inextricably intertwined with the other issue being remanded and will therefore also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. Send the Veteran the appropriate forms in order to develop the matter of a TDIU. 3. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination for his rhinitis. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should opine as to the following: (a) Whether the Veteran has a diagnosis of rhinitis. If not, the examiner must explain the previous examinations and medical treatment records showing the Veteran does have a diagnosis of such. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's rhinitis disability was incurred during the Veteran's service. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's rhinitis is proximately due to any of his service connected disabilities. (d) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's rhinitis was aggravated by any of his service connected disabilities. The examiner should offer a rationale for any opinion offered. 4. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claims, and if appropriate, whether the Veteran is entitled to a TDIU. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.