Citation Nr: A25035177 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240205-414862 DATE: April 16, 2025 ORDER Entitlement to separate evaluations for asthma and obstructive sleep apnea (OSA) is denied. FINDING OF FACT Separate evaluations for OSA and asthma are not permitted by law. CONCLUSION OF LAW Separate evaluations for OSA and asthma are not permitted as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.14, 4.96, 4.97, Diagnostic Codes 6847 and 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1996 to May 2016. In the February 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2024 agency of original jurisdiction (AOJ) decision on appeal, identified in the VA Form 10182 by the February 2024 notification letter sent to the Veteran. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Veteran maintains that his asthma and OSA should be awarded separate-or otherwise higher-disability ratings. See February 2024 VA Form 10182. He was awarded service connection for OSA, rated at 50 percent, in an October 2016 rating decision. His award was effective June 1, 2016. He was then awarded service connection for asthma in the January 2024 rating decision on appeal, which combined his asthma disability with his OSA rating on the finding that the 50 percent rating for OSA subsumed the smaller, 10 percent rating for asthma under applicable regulations. The Veteran argues that his ratings for these two disabilities should be evaluated separately. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disabilities specifically listed in the rating schedule may only be rated under diagnostic codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). Evaluating one disability under multiple diagnostic codes must be avoided, except that separate ratings may be assigned for distinct disabilities resulting from the same injury, as long as one condition's symptomatology is not duplicative of or overlapping with symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. VA regulations state that ratings under diagnostic codes (DCs) 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under DCs 6819 and 6820 will not be combined with each other, or with DCs 6600 through 6817, or 6822 through 6847. Rather, where more than one of these diagnostic codes could apply, a single rating will be assigned under the code reflecting the predominant disability, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § 4.96(a). VA will accordingly evaluate coexisting service-connected respiratory conditions covered by § 4.96(a) under the criteria enumerated in the predominant diagnostic code criteria. Id.; see also Urban v. Shulkin, 29 Vet. App. 82, 95 (2017). The term "predominant" is not defined in the rating criteria. Merriam- Webster defines predominant as "being most frequent or common." See Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. Here, the Veteran's OSA is rated pursuant to the criteria under DC 6847. 38 C.F.R. § 4.96. DC 6847 provides ratings for sleep apnea syndromes (obstructive, central, and mixed). Sleep apnea that requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine is rated 50 percent disabling. Obstructive sleep apnea that manifests in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy, is rated 100 percent disabling. 38 C.F.R. § 4.97. Asthma is rated under the criteria in DC 6602, assessing symptom severity in part based on results of pulmonary function testing (PFT). Under this DC, bronchial asthma warrants a 10 percent rating for Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent of predicted value, or the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 71- to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A 30-percent rating is assigned 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 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 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 requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. In sum, the Board is bound by 38 C.F.R. § 4.96(a), which specifically prohibits the assignment of separate evaluations for asthma and obstructive sleep apnea. See 38 C.F.R. § 4.96(a); Urban, 29 Vet. App. at 90 (declining to consider the non-dominant disability and stating "[g]iven that the regulation prescribes that to avoid pyramiding VA must not separately evaluate the listed respiratory conditions and combine them under 38 C.F.R. § 4.25, as would occur in a conventional evaluation, the Secretary's decision to adhere to the criteria in the predominant [Diagnostic Code] makes sense."). The Board is accordingly precluded as a matter of law from assigning separate disability ratings for the Veteran's disabilities. The Board additionally does not find a rating in excess of 50 percent warranted under applicable diagnostic codes. The current 50 percent rating is awarded based on OSA requiring daily use of a continuous airway pressure (CPAP) machine with persistent daytime hypersomnolence. See June 2016 VA examination; October 2016 rating decision. The Veteran has not asserted, and the record does not reflect, OSA causing chronic respiratory failure with carbon dioxide retention, cor pulmonale, or a history of tracheostomy. Disability symptoms are accordingly consistent with a 50 percent rating under DC 6847. 38 C.F.R. § 4.97. Regarding the Veteran's asthma, private pulmonology notes submitted in October 2023 describe mild intermittent asthma with a prescribed inhaler for symptom control. Concurrent PFT results showed an FEV-1 of 79 percent predicted, and an FEV-1/FVC of 77 percent predicted. The Veteran was scheduled for a follow up appointment one month later, characterized as a follow-up appointment after another PFT and chest x-ray. The provider notes did not indicate that the Veteran was experiencing symptom exacerbations or was seen on a monthly, or regular, basis for symptom exacerbations. At a November 2023 examination, the Veteran reported asthma symptoms abated after he retired in 2016 and stopped working out regularly. His symptoms have since been associated with environmental triggers. He reported being prescribed daily inhalational bronchodilator therapy, consistent with his treatment records. PFT results from that examination showed FVC and FEV-1 results as 92 percent predicted, and FEV-1/FVC of 100 percent predicted. The Veteran denied monthly treatment for exacerbations or prescribed use of corticosteroids. Considering the medical record in the light most favorable to the Veteran, the highest available rating under DC 6602 would be 10 percent, less than the 50 percent rating currently assigned. 38 C.F.R. § 4.97, DC 6602. He has characterized his own asthma symptoms as intermittent and occurring less often than daily. By contrast, the record indicates OSA occurs nightly. The Board accordingly finds OSA to be the "predominant disability" in both symptom regularity and manifestation. In sum, the disabilities at issue in this case present with duplicative and overlapping manifestations, namely difficulty with breathing. 38 C.F.R. § 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Given the binding nature of the applicable statutory and regulatory provisions recited above and the facts of this case, the Board finds that separate evaluations for OSA and asthma are not permitted. The Board is without authority to grant the Veteran's claim on an equitable basis, and instead is constrained to follow the specific provisions of the law. 38 U.S.C. § 7104. As the law is dispositive, the claim must be DENIED because of the lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). (This space intentionally left blank. VLJ signature on next page.) J.P. Norman Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.