10-21 458
10-21 458
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served 1986–2009; claims for service-connected obstructive sleep apnea (OSA) and asthma granted by RO (effective July 2009) and initially rated together at 50% under DC 6847.
- Veteran sought separate ratings for OSA (DC 6847) and asthma (DC 6602); RO combined them under a single rating citing 38 C.F.R. § 4.96(a).
- Board previously denied separate ratings in Nov. 2014; Court granted joint motion to remand in May 2016 because Board failed to identify the predominant disability and consider higher rating for it.
- Medical evidence: pulmonary function tests in 2009 and 2015 showed post-bronchodilator FEV‑1 and FEV‑1/FVC above thresholds for higher ratings, but a Dec. 5, 2015 DBQ reported three courses of systemic corticosteroids in prior 12 months.
- Veteran works primarily overseas and was often unavailable for VA exams; private DBQs were provided. Issues on sinusitis and positional vertigo were referred/remanded for further AOJ development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to separate ratings for OSA and asthma | §4.96 is ambiguous/disjunctive; OSA and asthma have distinct etiologies and manifestations so separate ratings should be allowed | §4.96(a) prohibits combining DCs 6600–6817 and 6822–6847; where both involve pulmonary involvement, separate ratings are barred | Denied: separate ratings not permitted; asthma is predominant respiratory disability so single rating applies |
| Whether predominant disability was identified and higher rating considered | Board previously failed to identify predominant disability and consider higher rating (basis for remand) | VA must apply §4.96 and evaluate predominant disability under applicable DCs | Granted in part: asthma found predominant; no >50% rating before Dec. 5, 2015; 60% rating granted from Dec. 5, 2015 due to intermittent systemic steroid courses |
| Entitlement to rating >50% for OSA with asthma prior to Dec. 5, 2015 | Veteran sought higher rating based on symptoms | Medical records and PFTs pre-Dec. 2015 do not meet DC 6602 numeric or treatment criteria for >50% | Denied for period prior to Dec. 5, 2015 |
| Entitlement to rating >60% from Dec. 5, 2015 (extra-schedular/TDIU) | Veteran’s symptomatology and work impacts may warrant extra-schedular consideration or TDIU | Record lacks exceptional/unusual disability picture or marked employment interference; veteran remained employed | Assigned 60% from Dec. 5, 2015; extra-schedular and TDIU not warranted |
Key Cases Cited
- Dela Cruz v. Principi, 15 Vet. App. 143 (Vet. App. 2001) (VCAA duties need not apply when resolution is statutory/regulatory interpretation)
- Gordon v. Nicholson, 21 Vet. App. 270 (Vet. App. 2007) (canons of statutory construction apply to VA regulations)
- Thun v. Peake, 22 Vet. App. 111 (Vet. App. 2008) (three-step extra‑schedular rating inquiry)
- Sabonis v. Brown, 6 Vet. App. 426 (Vet. App. 1994) (when operation of law is dispositive, appeal terminates)
- Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (VCAA notice not required for downstream rating/effective date issues after grant of service connection)
- Rice v. Shinseki, 22 Vet. App. 447 (Vet. App. 2009) (TDIU may be raised as part of increased rating claim)