Citation Nr: 22012127 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 14-30 602 DATE: March 2, 2022 ORDER A disability rating in excess of 30 percent for asthma is denied. FINDING OF FACT The Veteran is shown to have been prescribed a daily bronchodilator inhaler throughout the course of his appeal, but his asthma has not been shown to cause FEV-1 of less than 55 percent predicted, FEV-1/FVC of less than 55 percent of predicted, at least monthly visits to a physician for required care of exacerbations, or at least three courses a year of systemic (oral or parenteral) corticosteroids. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for asthma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1977 to January 1980. By way of background, the Veteran has been rated at 30 percent for his service-connected asthma since May 19, 2004. In January 2013, the Veteran filed a supplemental claim for an increased rating. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This appeal was previously before the Board in June 2021. The Board remanded the claim for an addendum medical opinion to clarify the Veteran's medications to treat his asthma. The Board is satisfied that there has been substantial compliance with the June 2021 remand directive. Increased Rating The Veteran contends his asthma is worse than the existing rating contemplates. The Veteran indicates that he has difficulty in hot and humid weather and uses a nebulizer daily in addition to having an emergency inhaler. See January 2014 Statement in Support of Claim; May 2019 VA Examination. The Veteran's partner indicated that it was difficult for the Veteran to do daily tasks due to shortness of breath. See January 2021 Buddy Statement. The Veteran's asthma is rated at 30 percent under Diagnostic Code 6602, pertaining to bronchial asthma, which provides that a 10 percent rating is assigned for asthma when pulmonary function testing (PFT) shows forced expiratory volume at one second (FEV-1) is 71-80 percent of the predicted amount, or; FEV-1/forced vital capacity (FVC) is 71-80 percent of the predicted amount, or; intermittent inhalational or oral bronchodilator therapy is used. A 30 percent rating is assigned for asthma for FEV-1 of 56 to 70 percent of predicted value, or FEV-1/FVC of 56 to 70 percent, or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication. A 60 percent rating is assigned for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids. A maximum 100 percent rating is assigned for an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requiring daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. 38 C.F.R. § 4.97, DC 6602. Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs 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). When evaluating based on PFTs, raters are to use post-bronchodilator results in applying the evaluation criteria in the Rating Schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different PFTs FEV-1, FVC, etc., so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). The Veteran filed a claim in January 2013 seeking an increased rating for asthma. In February 2021, the RO granted service connection for sleep apnea with asthma, rating it at 50 percent from September 29, 2000. The RO explained that the Veteran's rating for obstructive sleep apnea was combined with the rating for his service connected asthma, as VA regulations prohibit granting separate evaluations of coexisting respiratory conditions (i.e. asthma, and sleep apnea). The rating schedule provides that a single rating will be assigned under the diagnostic code 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). As such, the question in this appeal is whether the rating for asthma warrants a rating in excess of 50 percent such that it should be found to be the predominant respiratory disability. In May 2013 the Veteran was afforded a VA examination where he was diagnosed with asthma. The Veteran told the examiner that his lungs got worse every year and he felt that he could not breathe unless he had a fan on his face. The Veteran reported using his nebulizer daily especially when the weather was hot. Hot and humid weather resulted in the Veteran being confined mostly to his home. Upon examination, post-bronchodilator testing showed FEV-1/FVC of 80 percent predicted, which the examiner indicated was the test result that most accurately reflected the Veteran's level of disability. The Veteran was not shown to have had monthly visits to a physician for required care of exacerbations or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Pursuant to a Board remand, the Veteran was afforded a VA examination in September 2018 at which he indicated that that his asthma had worsened since his last examination. The Veteran reported only annual trips to a physician for required care of exacerbations. Upon examination, post-bronchodilator testing showed FVC of 59 percent predicted, FEV-1 of 64 percent predicted, and FEV-1/FVC of 106 percent. The Veteran did not require intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. In an October 2021 medical opinion, the examiner indicated that based on the review of the evidence of record, the medication regiment for the Veteran's asthma did not require intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. The examiner indicated that while the Veteran used steroid inhalers as needed as part of his medication regiment, steroid inhalers did not constitute nor qualify as systemic (oral or parenteral) corticosteroid therapy. The Veteran's VA treatment records did not show findings that were worse than those shown at the VA examinations. For example, a November 2017 VA treatment note showed a FEV-1 of 69 percent with a 13 percent relative improvement and 330 mL absolute increase in response to bronchodilator and FEV-1/FVC of 80 percent. A September 2018 VA treatment note showed FEV-1 61 percent with a 3 percent response to bronchodilator and FEV-1/FVC of 79 percent. At the time, his treating physician noted that his FEV-1 was low which could be related to the Veteran's obesity. A January 2021 private medical opinion of record indicates that the Veteran experiences asthma symptoms that include difficulty walking to the car from the house in hot, humid, or cold weather. The Veteran reported being very cautious about his activity level due to a fear of an attack. He indicated difficulty performing household chores and shortness and lightheadedness while showering and getting dressed. For example, there were some days he became so winded by putting on his pants and socks, he waited 15 to 20 minutes before putting on his shirt. While the Board is sympathetic to the Veteran's asthma symptoms and the effects that they have on his daily life and activities, based on review of the evidence, the criteria for a higher 60 percent rating are not met. A 60 percent rating requires evidence of intermittent (at least 3 times per year) courses of systemic (oral or parenteral) corticosteroids. VA treatment records indicate that the Veteran in prescribed Symbicort (Budesonide) and Albuterol. In December 2019, the Board remanded the Veteran's claim to address whether the medication regiment for the Veteran's asthma (to include Symbicort) constituted: a) the daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications or b) intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. The examiner reported that the Veteran was prescribed albuterol, an inhaled bronchodilator; and budesonide, a formoterol/corticosteroid. The examiner explained that budesonide is a low dose inhaled corticosteroid used daily. The examiner explained that the Veteran used albuterol and budesonide for nebulizer inhalation therapy as needed. However, the examiner did not answer whether the Veteran's use of albuterol and budesonide, "as needed," met the intermittent use threshold; or whether albuterol and budesonide constituted a course of systemic corticosteroids. Here, the examiner did not specifically answer, or explain whether or not, the Veteran required intermittent courses of systemic corticosteroids. As such, the Board remanded the case a second time. In December 2020, a VA examiner explained that the medication regiment for the Veteran's asthma DOES NOT require intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. The examiner explained that as noted in VA treatment records and prior exam reports, the Veteran uses steroid inhalers as needed as part of his medication regiment. Moreover, the examiner indicated that steroid inhalers do NOT constitute nor qualify as systemic (oral or parenteral) corticosteroid therapy. (emphasis in original). There is no other probative evidence of use of any oral or parenteral corticosteroids medications for treatment of the Veteran's asthma. Accordingly, this does not provide a basis for a rating in excess of 50 percent for asthma. A 60 percent rating may also be assigned when there is evidence of PFTs with FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations. Medical evidence of record, including VA examinations and VA treatment records do not show findings of these levels nor of at least monthly visits to a physician. In fact, the Veteran specifically indicated at his May 2019 VA examination that he only has annual visits to a physician for his asthma. The Board notes that no argument has been advanced, nor does the evidence suggest, that the overall disability warrants elevation of the predominant disability to the next higher evaluation. The next higher rating under 38 C.F.R. § 4.97, Diagnostic Code 6847, requires chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy and would warrant a total rating. There is no basis to suggest any of these severe health conditions. Consequently, the evidence of record persuasively favors the conclusion that a rating in excess of 30 percent for asthma is not warranted and the claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.