Citation Nr: 22012246 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-36 182A DATE: March 3, 2022 ORDER An initial rating in excess of 60 percent for asthma with restrictive lung disease (hereinafter respiratory disability) prior to January 24, 2020, is denied. FINDING OF FACT Throughout the appeal period, respiratory disability was not manifested by (1) an FEV-1 (Forced Expiratory Volume in one second) less than 40-percent predicted, or; (2) FEV-1/FVC (Forced Vital Capacity) less than 40 percent, or; (3) more than one attack per week with episodes of respiratory failure, or; daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications or; (4) DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) of less than 40 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit) or; (5) cor pulmonale (right heart failure), or right ventricular hypertrophy, or pulmonary hypertension (shown by Echo or cardiac catheterization), or episode(s) of acute respiratory failure, or requires outpatient oxygen therapy. CONCLUSION OF LAW The criteria for an evaluation in excess of 60 percent for respiratory disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97 Diagnostic Codes 6602, 6845. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1990 to July 1991, and from April 1993 to March 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. In March 2020 and April 2021, the Board remanded the appeal. During remand status, a November 2021 rating decision increased the disability rating for respiratory disability from 60 to 100 percent, effective January 24, 2020. As this does not represent the maximum available benefit for this disability, the claim for a rating in excess of 60 percent prior to January 24, 2020, remains in appeal status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that Veterans are presumed to seek the maximum available benefit for a disability). Entitlement to a rating in excess of 60 percent for respiratory disability prior to January 24, 2020. The Veteran contends that an initial rating in excess of 60 percent was warranted prior to a grant of total rating effective January 24, 2020. See Hearing Transcript (January 2020). Specifically, he testified in January 2020 that the results at the examinations, including in 2017, were worse than reported, and that his asthma did not respond to inhalers. Id. The Board concludes that the weight of the persuasive evidence is against the claim for a rating in excess of 60 percent. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97 Diagnostic Codes 6602, 6845. Throughout the appeal period, respiratory disability was not manifested by (1) an FEV-1 (Forced Expiratory Volume in one second) less than 40-percent predicted, or; (2) FEV-1/FVC (Forced Vital Capacity) less than 40 percent, or; (3) more than one attack per week with episodes of respiratory failure, or; daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications or; (4) DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) of less than 40 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit) or; (5) cor pulmonale (right heart failure), or right ventricular hypertrophy, or pulmonary hypertension (shown by Echo or cardiac catheterization), or episode(s) of acute respiratory failure, or requires outpatient oxygen therapy. Disability evaluations are determined by the application of the VA 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 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). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's respiratory disability was rated at 60 percent prior to January 24, 2020, under diagnostic code (DC) 6602-6845. 38 C.F.R. § 4.97, DCs 6602-6845. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code 6602 provides a maximum 100 percent rating for bronchial asthma with 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 the disability requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. See 38 C.F.R. § 4.97, Diagnostic Code 6602. When the pulmonary function tests (PFTs) are not consistent with clinical findings, evaluation should be based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. 38 C.F.R. § 4.96(d)(3). Post-bronchodilator studies are required when PFTs 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). 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). Under Diagnostic Code 6845, a 100 percent rating is warranted with FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Codes 6845. Turning to the evidence of record, a December 2012 initial evaluation showed DLCO results as 54 percent. See VA Examination (December 2012). The report reflects that the Veteran's respiratory disability did not require treatment with oral bronchodilators, use of antibiotics, outpatient oxygen therapy, oral or parenteral corticosteroid medications, or inhalation medication. The examiner noted no asthma, including no attacks or respiratory failure in the last 12 months, and no physician visits for exacerbations were indicated. Pulmonary function testing results showed FVC of 75 percent predicted, FEV1 of 65 percent predicted, and FEV/FVC of 72 percent. The examiner opined that FEV1% results most accurately reflected the disability. It was noted that the November 2012 spirometry suggested a mild restrictive ventilatory impairment. An April 2017 VA examination revealed DLCO as 47 percent predicted. See C&P Exam (April 2017). At that time the diagnosis was emphysema and restrictive lung disease based on PFT findings. The Veteran reported shortness of breath which associated mostly with chest pain upon inspiration; and sharp chest pain at rest and with exertion when he takes a deep breath lasting from a few minutes to a few hours and which could happen daily. This report also reflects that the Veteran's respiratory disability did not require treatment with oral bronchodilators, use of antibiotics, outpatient oxygen therapy, oral or parenteral corticosteroid medications, or inhalation medication. Pulmonary function testing results showed FVC of 70 percent predicted, FEV1 of 61 percent predicted, and FEV/FVC of 71 percent. The examiner opined that FEV1/FVC results most accurately reflected the disability. The examiner indicated that the Veteran's respiratory disability could affect working in any physical roles requiring heavy exertion or working in hot environments. A May 2017 VA addendum opinion clarified that the Veteran's asthma "progressed to 'restrictive lung disease'." See C&P Exam (May 2017). The examiner referred to March 2017 computed tomography that showed underlying bullous emphysema and no change in pulmonary nodules. A December 2017 VA addendum opinion shows that, given the Veteran's history of restrictive lung disease it is more likely that the DLCO (and not the FEV-1/FVC) most accurately reflects the Veteran's level of disability. VA treatment records throughout the appeal period show that, in April 2013, the Veteran was prescribed Albuterol for shortness of breath and mometasone furoate for breathing. See CAPRI (June 2013). In July 2015, he was shown to be taking albuterol. See CAPRI (March 2017). A September 2015 pulmonary note indicated no response to bronchodilators and airflow obstruction, reduced diffusion capacity and bulla. Id. An April 2016 VA treatment note suggests that restrictive process improved; an October 2016 ambulatory care note shows an assessment of emphysema and notes no inhaler use. Id. An October 2017 VA treatment note indicated that the Veteran had been feeling well without recent chest pain, dyspnea or shortness of breath, and was able to go to the gym and perform exercises. See CAPRI (March 2020). In October 2018, the Veteran presented for his annual visit and reported occasional fatigue with exertion and on climbing stairs; he denied acute chest pain, shortness of breath, cough or fever, or recent exacerbations. Id. In April 2019, the Veteran again denied shortness of breath or recent exacerbations. Id. Having carefully reviewed the evidence of record, the Board finds that weight of the persuasive evidence is against the claim for increase. Throughout the appeal period, the Veteran's respiratory disability was manifested by no worse than FVC of 70 percent predicted, FEV1 of 61 percent predicted, and FEV/FVC of 71 percent predicted; as well as DLCO no worse than 47 percent predicted. Additionally, the Veteran has not contended, and the medical evidence does not reflect, that he has attacks more than once per week with episodes of respiratory failure. Moreover, the Veteran is not prescribed a systemic immuno-suppressive medication, including no daily use of systemic (oral or parenteral) high dose corticosteroids, nor does he contend and the medical evidence does not reflect that he receives any injections on a daily basis. See 38 C.F.R. § 4.97, Diagnostic Code 6602 (a maximum 100 percent evaluation requires daily use of systemic immunosuppressive medications). While VA treatment records note that the Veteran was prescribed Albuterol for shortness of breath and mometasone furoate for breathing in April 2013, the record does not indicate that the Veteran used daily oral or parenteral high dose corticosteroids. To that effect, the Veteran was noted to use no medications or injections to treat his respiratory disability, including at his November 2012 VA examination, April 2017 VA examination and May 2017 VA medical opinion. Notably, the Veteran denied using any medication at his April 2017 VA examination. Lastly, the evidence does not reflect maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; that the Veteran requires outpatient oxygen therapy. The available medical evidence as well as the Veteran's reports of his respiratory disability reflects that, prior to January 24, 2020, the Veteran's respiratory disability does not more nearly meet the criteria for a 100 percent rating under Diagnostic Code 6602 or Diagnostic Code 6845, as discussed above. Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.