Citation Nr: 22018480 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-31 102 DATE: March 29, 2022 ORDER Entitlement to a disability rating in excess of 30 percent for reactive airway disease is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's service-connected reactive airway disease requires inhaled medication, and is manifested by Pulmonary Function Tests (PFT) results of forced expiratory volume in one second (FEV-1) of no less than 69 percent of the predicted value and a ratio of FEV-1 to forced vital capacity (FVC) of no less than 84 percent of the predicted value. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for service-connected reactive airway disease have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1994 to January 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In July 2021, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) to afford the Veteran an examination for his service-connected reactive airway disease. The Board finds that there was substantial compliance with the remand directives as an adequate VA examination was held on August 2021 evaluating the current severity of the Veteran's condition. The examination included a pulmonary function test (PFT). The examination was adequate because it is based on a physical examination, a description of the Veteran's symptoms, a review of the claims file, and a PFT. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for gastroesophageal reflux disease (GERD) was also remanded in July 2021. In an August 2021 statement that was received before the case was returned to the Board, the Veteran withdrew this claim and thus, it is no longer on appeal. 1. Disability Rating for Reactive Airway Disease Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. This claim stems from an August 2014 increased rating claim. The Veteran's reactive airway disease is currently assigned a 10 percent rating prior to August 25, 2014, and a 30 percent rating thereafter under 38 C.F.R. § 4.97, Diagnostic Code 6602, for bronchial asthma. Under Diagnostic Code 6602, a 10 percent rating is warranted for FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for FEV-1 of 56 to 70 percent predicted, 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 warranted for 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 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 than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; required daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. Id. In applying the criteria under Diagnostic Code 6602, post-bronchodilator studies are required when PFT is conducted for disability rating purposes, except in instances where the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96. In those cases, the VA is to use pre bronchodilator values. Id. If the FEV-1 and FVC values are both greater than 100 percent, then VA may not assign a compensable disability rating based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96(d)(7). The Veteran presented for a VA respiratory examination in December 2014. He reported current symptoms of coughing and inability to breathe deeply. He required the daily use of an inhalational bronchodilator therapy. He did not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. He did not have a history of asthmatic attacks, have any physician visits for required care of exacerbations, or episodes of respiratory failure. PFT results recorded the Veteran's pre-bronchodilator FEV-1 as 79 percent predicted and FEV-1/FVC as 109 percent predicted. His post-bronchodilator results revealed FEV-1 as 76 percent predicted and FEV-1/FVC as 107 percent predicted. The examiner indicated that the FEV-1 results most accurately reflects the Veteran's current pulmonary function. The examiner opined that the Veteran's respiratory condition did not impact his ability to work. The Veteran submitted an August 2016 private PFT report where his pre-bronchodilator FEV-1 was 62 percent, and FEV-1/FVC was 107 percent. An August 2017 private PFT results revealed pre-bronchodilator of FEV-1 as 64 percent, and FEV-1/FVC as 108 percent. There were no post-bronchodilator findings reported and there was no explanation provided during both tests. The Veteran was afforded a September 2019 VA respiratory examination. He reported experiencing intermittent dyspnea. Upon examination, it was noted that the Veteran required the use of inhaled medications, such as intermittent usage of an inhalational bronchodilatory therapy and daily usage of inhalational anti-inflammatory medication. He did not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. PFT results recorded the Veteran's pre-bronchodilator FEV-1 as 66.8 percent predicted, and FEV-1/FVC as 101.2 percent predicted. His post-bronchodilator results revealed FEV-1 as 69.2 percent predicted and FEV-1/FVC as 109 percent predicted. The examiner opined that the Veteran's respiratory condition did not impact his ability to work. The Veteran submitted an April 2021 private PFT report where his pre-bronchodilator FEV-1 was 53 percent predicted, and FEV-1/FVC as 101 percent predicted. There were no post-bronchodilators findings reported and there was no explanation provided. Most recently, the Veteran presented for an August 2021 respiratory VA examination. The Veteran reported symptoms of shortness of breath with increased activities and with moderate exertion and normal activities of daily living. He also reported experiencing fatigue, difficulty with communication, and participation in normal activities of daily living. On examination, it was noted that the Veteran required intermittent use of an inhalational bronchodilatory therapy and daily use of inhalational anti-inflammatory medication. He did not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. PFT results recorded the Veteran's pre-bronchodilator FEV-1 as 63 percent predicted, and FEV-1/FVC as 80 percent predicted. His post-bronchodilator FEV-1 was 69 percent predicted, and FEV-1/FVC was 84 percent predicted. Based on the foregoing, the Board finds that the most persuasive evidence of record is against a rating in excess of 30 percent for reactive airway disease during the period on appeal. The PFT results during the Veteran's examinations does not reveal findings, such as FEV-1 of at least 55 percent predicted and FEV-1/FVC of at least 55 percent predicted, to warrant the assignment of disability rating in excess of the current 30 percent rating. The Board acknowledges the April 2021 private PFT results where the Veteran's pre-bronchodilator FEV-1 was 53 percent predicted. However, post-bronchodilator results are required when PFT is conducted for disability rating purposes. Exceptions to the rule include instances where the results of pre-bronchodilator PFTs are normal, which was not the case here, and there was no reason provided as to why post-bronchodilator testing was not conducted. See 38 C.F.R. § 4.96. Further, there was no evidence of at least monthly visits to a physician for required care of exacerbations, intermittent courses of systematic corticosteroids, or more than one attack per week with episodes of respiratory failure. In making this decision, the Board consider the Veteran's statement that he has shortness of breath when he undertakes activities on a daily basis. See February 2021 Hearing Tr. at 3-4. The Veteran is competent to report symptoms of pain. Layno v. Brown, 6 Vet. App. 465 (1994). Consideration was also given to the statement from the Veteran's wife in September 2014 regarding the severity of the Veteran's condition and the need to rely more on inhalers. Based on these statements, the Veteran was afforded VA examinations, and he attended 3 examinations during the course of the appeal. The Board notes that during the examinations, the Veteran's symptoms were considered by the examiner included his need for using inhaled medication. Overall, when considering the Veteran's contentions and applying the rating schedule to this case, the evidence did not support the award of a higher rating. Accordingly, a higher rating is not warranted for service-connected reactive airway disease and the claim is denied. REASONS FOR REMAND 1. TDIU is Remanded. Remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. The Veteran has the following disability that is service connected: reactive airway disease (rated 10 percent prior to August 2014, and 30 percent thereafter). Given the above, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director if there is a reasonable possibility that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In the February 2021 hearing, the Veteran indicated that he cannot work due to symptomatology associated with service-connected reactive airway disease. See February 2021 Hearing Tr. at 5. At his August 2021 respiratory examination, the examiner noted the Veteran's shortness of breath limits his ability to communciate as well as his ability to be active. The examienr stated that this could impact his producivity, attendance, and safety. There is sufficient evidence to substantiate a reasonable possiblity that the Veteran might be unemployable. Accordingly, remand is required for referral of the claim for a TDIU to the Director for extraschedular consideration. Ray v. Wilkie, 31 Vet. App. 58 (2019). The matters are REMANDED for the following action: 1. Refer the Veteran's claim for a TDIU to VA's Director of Compensation Service for extraschedular consideration. 2. Readjudicate the claim. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.