Citation Nr: 22018338 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-65 307 DATE: March 28, 2022 ORDER Entitlement to a rating in excess of 60 percent for allergic asthma is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's allergic asthma has manifested in FEV-1 and FEV-1/FVC greater than 40 percent, has not manifested in daily asthma attacks with episodes of respiratory failure, and has not required daily use of high dose corticosteroids. 2. Resolving all reasonable doubt in favor of the Veteran, his allergic asthma prevents him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for allergic asthma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.97, Diagnostic Code (DC) 6602. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from January 2, 1974, to January 25, 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board videoconference hearing in December 2020, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. The Board remanded the claims on appeal in May 2021 and January 2022 for additional development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). In February 2022, the Veteran submitted additional evidence, specifically VA treatment records, after the most recent supplemental statement of case. The Board finds that the remand for additional development would present an unnecessarily delay and would not be beneficial to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). The Board notes that the Veteran has appealed the issues of entitlement to service connection for chronic obstructive pulmonary disease (COPD) and sleep apnea to the Board in the AMA system and has requested a hearing on those issues. As such, those issues will be addressed in a separate decision once the hearing is held. 1. Entitlement to a rating in excess of 60 percent for allergic asthma. The Veteran seeks a higher rating for his allergic asthma. For the reasons that follow, the Board finds that a higher rating is not warranted. The appeal period before the Board begins on November 26, 2013, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's allergic asthma has been rated 60 percent disabling throughout the entire appeal period pursuant to DC 6602. Under DC 6602, a 60 percent rating is warranted for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40- to 55-percent predicted, 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 rating is warranted for FEV-1 less than 40 percent predicted, or; FEV-1/FVC less that 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are conducted for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that the post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). When both pre- and post-bronchodilator results are available, the post-bronchodilator results should be applied to the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different PFTs, so that the level of evaluation would differ depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is utilized. 38 C.F.R. § 4.96(d)(6). As a preliminary matter, the Board notes that the Veteran has two respiratory conditions that affect his respiratory function, service-connected allergic asthma and currently nonservice-connected COPD. When it is not possible to separate the effects of a service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here, the Veteran has generally reported that same symptoms with regards to his asthma and COPD, specifically shortness of breath, cough, and increased shortness of breath with exertion. A June 2019 private treatment record notes "asthma-COPD overlap." A September 2019 VA fee-based examiner noted that both the Veteran's asthma and his COPD were predominately responsible for his limitation in pulmonary function. However, the examiner did explicitly note that the Veteran's COPD was predominately responsible for his need of oxygen therapy. In light of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that, except for the Veteran's need of oxygen therapy, it is not possible to distinguish the symptoms of his service-connected asthma from his nonservice-connected COPD. Thus, except for his use of oxygen, all respiratory symptomatology will be attributable to his service-connected asthma. Turning to the evidence of record, the Board finds that a total schedular rating is not warranted. The Veteran's FV1 and FEV-1/FVC has been above 40 percent of predicated value and he has not had any asthma attacks with episodes of respiratory failure. In this regard, the Veteran underwent a VA examination in March 2015. The examiner noted that the Veteran's asthma did not require oral or parental corticosteroid medications and that he had not had any asthma attacks with episodes of respiratory failure in the past 12 months. PFTs were completed. The examiner noted that the Veteran's FEV-1/FVC (post-bronchodilator) most accurately reflected his level of disability and that such was result was 45 percent of predicated value. His FEV-1 (post-bronchodilator) was 56 percent predicated. The Veteran subsequently underwent a VA fee-based examination in September 2019. Again, the examiner noted that the Veteran's asthma did not require the use of oral or parental corticosteroids and that he had not had any asthma attacks with episodes of respiratory failure in the last 12 months. The examiner noted PFT results from March 2019 at which time the Veteran's FEV-1 was 46 percent predicated and FEV-1/FVC was 85 percent predicated. The examiner reported that his FEV-1 most accurately reflected his level of disability. A July 2021 private treatment record also shows that PFTs were conducted in July 2021. At that time, the Veteran's FEV-1 (post-bronchodilator) was 51 percent predicated and FEV-1/FVC (post-bronchodilator) was 59 percent predicated. As the Veteran's FEV-1/FVC and FEV-1 have not been 40 percent or less and he has not experienced any asthma attacks with episodes of respiratory failure, the Board finds that a total schedular rating for his allergic asthma is not warranted. In coming to this conclusion, the Board notes that the current evidence of record does not establish that the Veteran has used systemic high dose corticosteroids on a daily basis during the appeal period. It is acknowledged that an April 2014 VA treatment record noted that the Veteran was to continue using inhaled corticosteroids as his asthma was no longer controlled. See also May 2014 VA treatment record. In a January 2022 VA treatment record, it was noted that the Veteran was able to tolerate prednisone and had been prescribed such "fairly recently." However, the evidence of record overall does not indicate that such corticosteroids were a high dose and required daily use as contemplated by the 100 percent evaluation. Rather, the record overall shows that the Veteran was allergic to Prednisone, as it is routinely listed under his allergies. It also shows that when Prednisone was prescribed, Prednisone tapering was also included until medication completion. Moreover, the Veteran contends that he cannot use corticosteroids because he is allergic to them, and because they were causing him to lose his eyesight. See November 2021 Lay/Witness Statement; see also A May 2014 VA treatment record, indicating that the Veteran's use of steroids may have affected his eyesight. While the January 2022 VA treatment record indicates that the Veteran has been able to tolerate corticosteroids medication recently, that same report also shows that tapering instructions were provided, which is also consistent with the other objective medical evidence of record. Thus, the Board finds that the record overall does not establish that the Veteran would be prescribed daily use of high dose corticosteroids to treat his asthma as contemplated for the assignment of a 100 percent rating. Also, in denying a higher rating, the Board acknowledges the Veteran's reports of severe shortness of breath, coughing, decreased exercise tolerance, and use of a variety of inhalers. However, the Board finds that such symptoms are already contemplated by his current 60 percent rating for limited pulmonary function. The Board also acknowledges the Veteran's reports of experiencing asthma attacks on a daily basis. However, the evidence of record does not indicate that the Veteran also experiences episodes of respiratory failure with his asthma attacks. See March 2015 VA examination; September 2019 VA fee-based examination. Furthermore, the Board also acknowledges the Veteran's use of oxygen therapy. However, as explained above, the competent evidence of record has attributed the need for such to his nonservice-connected COPD. As such, it cannot be considered in the Veteran's rating for his allergic asthma. In sum, the Board finds that a rating higher than 60 percent is not warranted at any point during the appeal period for the Veteran's allergic asthma. There is no doubt to be resolved; the claim for an increased rating is denied. 2. Entitlement to a TDIU. The Veteran contends that he is unemployable due to his service-connected allergic asthma. For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds that a TDIU is warranted. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In the Court's March 2019 Panel Decision, it explained that "substantially gainful employment" contains economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Id. Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Throughout the appeal period, the Veteran has been service-connected for (1) allergic asthma, rated 60 percent disabling, and (2) a panic disorder associated with allergic asthma, rated 30 percent disabling. His combined rating has been 70 percent for the entire appeal period. As such, he meets the schedular requirements for a TDIU. Turning to the evidence of record, the Veteran last worked in August 1989. See November 2014 Veteran's Application for Increased Compensation Based on Unemployability (VA 21-8940). The Veteran's work history consists solely of work as an audio-visual technician. Id. Additionally, the highest level of education he completed was high school. Based on the Veteran's education and work history, the Board finds he would have the proficiency to work in an unskilled/semi-skilled physical labor position as well as an unskilled non-physical labor position such as a receptionist, telemarketer, or parking lot attendant. As an initial matter, the Board notes that while the Veteran has a service-connected and nonservice-connected condition that affects his respiratory function, as explained in detail above, the Board has attributed the Veteran's limited respiratory function to his service-connected allergic asthma. While the Board finds that the Veteran would have the proficiency to work in one of the aforementioned positions, it also finds that his service-connected allergic asthma would preclude the Veteran's ability to work in such positions. In this regard, the Veteran's allergic asthma causes the Veteran to experience severe shortness of breath and significantly limits his ability to engage in physical exertion. The March 2015 VA examiner opined that the Veteran's asthma would impact his ability to work and that he was unable to perform physical labor involving brisk walking, running, climbing stairs, and carrying more than 25 pounds. The September 2019 VA fee-based examiner also opined that the Veteran's asthma would impact his ability to work and noted that the Veteran cannot walk further than 75 feet, cannot lift more than 25 pounds, and cannot climb stairs. Thus, the Board finds that the Veteran's asthma would preclude any type of physical labor. Also, although work in an unskilled position, such as a receptionist or telemarketer, would not require physical labor, it likely would require at least minimal physical exertion, such as some walking, which the Veteran's asthma would likely preclude. As noted above, the Veteran is unable to walk more than 75 feet or engage in brisk walking or climbing stairs. In a November 2021 lay statement, D.H. reported that the Veteran was unable to do simple tasks that required very little physical exertion, such as taking out the trash and checking fluids in a car. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely as not that his asthma would preclude work in an unskilled non-physical labor position. Accordingly, the Board finds that the criteria for a TDIU have been met for the entire appeal period. As such, the claim is granted. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mortimer, 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.