Citation Nr: 18154122
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 14-03 138
DATE:	November 29, 2018
ORDER
Entitlement to service connection for right knee tendonitis is denied.
For the period of November 3, 2009, to October 3, 2017, entitlement to an evaluation of 30 percent, but no higher, for service-connected asthma is granted.
For the period of October 4, 2017, to the present, entitlement to an evaluation in excess of 10 percent for service-connected asthma is denied.
Entitlement to an evaluation in excess of 10 percent for service-connected cluster headaches is denied.
REMANDED
Entitlement to service connection for tinnitus is remanded.
FINDINGS OF FACT
1.  The most probative evidence of record does not show right knee tendonitis to be etiologically related to a disease, injury, or event in service, or to a service-connected disability. 
2. For the period of November 3, 2009, to October 3, 2017, the Veteran’s service-connected asthma was manifested by Forced Expiratory Volume in one second (FEV-1) of over 70 percent predicted, FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of over 70 percent, and daily inhalational bronchodilator therapy or anti-inflammatory medication.
3. For the period October 4, 2017, to the present, the Veteran’s service-connected asthma is manifested by FEV-1 of over 70 percent predicted, FEV-1/FVC of over 70 percent, and inhalational bronchodilator therapy on an intermittent basis.
4.  The Veteran’s service-connected cluster headaches are manifested by headaches lasting several weeks that appear approximately twice per year.
CONCLUSIONS OF LAW
1.  The criteria for entitlement to service connection for right knee tendonitis have not been met.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310, 3.317 (2017).
2.  For the period of November 3, 2009, to October 3, 2017, the criteria for a disability rating of 30 percent, but no more, for service-connected asthma have been met.  See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.97, Diagnostic Code 6602 (2017).
3. For the period October 4, 2017, to the present, the criteria for a disability rating in excess of 10 percent for service-connected asthma have not been met.  See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.97, Diagnostic Code 6602 (2017).
4.  The criteria for a disability rating in excess of 10 percent for service-connected cluster headaches have not been met.  See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8100 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from March 1999 to April 2007.
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Neither the Veteran nor his representative has raised any issues with the duty to notify or to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Thus, the Board need not discuss any potential issues in this regard.

In March 2016, the Veteran testified at a video conference hearing before the undersigned Veterans Law Jude (VLJ).  The Veteran has not alleged any deficiency with his hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010).  In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board.

In August 2016, the Board denied the issue of service connection for tinnitus and remanded the remaining issues on appeal for further development.  Subsequently, the Veteran appealed the denial of his claim for service connection for tinnitus to the United States Court of Appeals for Veterans Claims (Court).  In an April 2017 Joint Motion for Partial Remand (JMPR), the Board’s denial of service connection for tinnitus was vacated and remanded for further development and consideration.  In August 2017, the issues on appeal were remanded for further development and have now been returned to the Board for consideration.  The Board notes that the issue of entitlement to service connection for allergies was also remanded by the Board in August 2017 for further development.  In a May 2018 rating decision, the RO granted service connection for allergic rhinitis (also claimed as hives/skin condition/allergies).  This decision was a complete grant of benefits with respect to the issue of service connection for allergies.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  Therefore, the service connection issue is no longer on appeal before the Board.  Additionally, the RO recharacterized the Veteran’s vascular headaches as cluster headaches and increased the evaluation to 10 percent, effective November 3, 2009, in the May 2018 rating decision.  Since the RO did not assign the maximum disability rating possible, this rating decision would not serve as a complete grant of benefits with respect to this issue.  AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

Service Connection
Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C. §§ 1131; 38 C.F.R. § 3.303.  In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310 (2017).  In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).
The Veteran suggested at the March 2013 hearing that he has a right knee disability that is related to his service-connected left knee disability. 
A review of his service treatment records reveals no complaints, treatment, or diagnoses of a right knee disability.
At an October 2017 VA examination, the Veteran complained of right knee pain with running during service but said he did not believe he got checked for the pain.  Right knee radiographs revealed large exostosis along the posterior tibia, likely an osteochondroma.  The examiner noted that the exostosis is an incidental finding and does not correlate with his right knee complaints.  The examiner noted that, for the claimed condition of right knee tendonitis, there are no objective findings of this disorder.  Therefore, there is no diagnosis for this claim.  The Veteran, however, has a finding of a tibial exostosis, which has not been defined, but most likely represents an osteochondroma.  It is less likely than not that this exostosis is due to or caused by events which occurred in the military.  The examiner concluded by finding that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  There is no right knee diagnosed disorder on which to render an opinion regarding either direct or secondary service connection.  Also, the examiner could find no entry regarding right knee complaints or symptoms in his service treatment records.  In a January 11, 2010, treatment note from the San Antonio VA Medical Center (VAMC), there was no mention of knee pain and it was noted that he ran 6 times per week.  The examiner concluded that pain is purely a subjective complaint.  Pain alone without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a medical diagnosis or physical impairment.  Without objective findings of a disorder, it would be mere speculation to opine whether or not that he has an undiagnosed illness or condition. 

Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. 3.303(d) (2017).   Currently, there is no medical evidence of record indicating that the Veteran had a right knee disability in service and no medical evidence of record relating a current diagnosis of a right knee disability to service.  The October 2017 VA examiner specifically found that the Veteran has tibial exostosis, which has not been defined, but most likely represents an osteochondroma.  The examiner further found that it is less likely than not that this exostosis is due to or caused by events which occurred in the military.  The examiner noted that the exostosis is an incidental finding and does not correlate with his right knee complaints.  The examiner went on to find that there is no right knee diagnosed disorder on which to render an opinion regarding either direct or secondary service connection.  The Board notes that there is no medical evidence to the contrary.

 
The Board has considered the Veteran’s assertions that he has a right knee disability related to his service-connected left knee tendonitis.  With regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology.  See id., at 1376-77.  In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

Here, the Veteran’s complaints as to duration of symptoms are certainly capable of lay observation.  However, the Board finds that the Veteran is not competent to diagnose himself with a right knee disability, as the Veteran does not have training in orthopedic diseases.  As such, the Veteran’s opinion is afforded little weight in the analysis of whether he has a right knee disability related to service or to a service-connected disability. 

By contrast, the physician who provided the October 2017 VA opinion reviewed the Veteran’s claims file and offered an opinion with supporting explanations as to why, in his medical judgment, the Veteran does not have a right knee disability related to service or a service-connected disability.  As such, the Board places the most significant weight on the October 2017 medical opinion, which finds against service connection.  Thus, the Veteran’s claim for service connection for right knee tendonitis must fail on direct and secondary bases.

The Board notes that, historically, symptoms such as pain, without a diagnosed or identifiable underlying malady, were not sufficient to establish a current disability for VA compensation purposes.  Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (Sanchez-Benitez I).  However, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit rejected such a theory, holding that pain can constitute a current disability under 38 U.S.C. § 1110, so long as it results in functional impairment.  Here, the Veteran has not established that his right knee pain resulted in a functional impairment which limited his earning capacity.  Consequently, the Board finds that the Veteran has not experienced a current disability for VA purposes under both Sanchez-Benitez I and Saunders.

Finally, the Board notes that service connection may be established for a chronic disability resulting from an undiagnosed illness, which became manifest either during active service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317 (a)(1)(i) (2017).  As the Veteran’s military records reflect that he served in Iraq during 2006, the Veteran had active military service in the Southwest Asia Theater of operations during the Persian Gulf War.  See 38 U.S.C. § 1117 (West 2002); 38 C.F.R. § 3.317 (2017). 

Concerning the Veteran’s complaints of right knee pain, the record simply does not support a finding that such complaints became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more in the intervening period.  38 C.F.R. § 3.317 (a)(1)(i) (2017). 

As noted above, the Veteran’s service treatment records are absent right knee complaints.  Regarding post-service complaints, there is no evidence reflecting that the Veteran’s right knee complaints manifested to a degree of 10 percent or more.  At the October 2017 VA examination, the Veteran reported that he walks and climbs stairs slowly and is unable to run due to knee pain during flare-ups only, which occur once out of every 20 times he goes running.  His knee pain manifests with pain in the front of his knee, which lasts a few hours.  At this examination, the Veteran denied locking and giving way.  Range of motion was noted as normal.  He had no ankylosis, history of recurrent subluxation, lateral instability, or meniscal conditions.  All right knee instability tests were normal.  X-rays did not reveal degenerative or traumatic arthritis.  There is no medical evidence in the claims file to contrary.  Thus, there is no evidence in the claims file reflecting that the Veteran’s right knee complaints met the criteria for a 10 percent rating under any pertinent diagnostic criteria, and the Veteran has not made assertions identifying symptoms that would meet the criteria for a 10 percent rating or more.  See 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010, 5256- 5263.

Thus, without objective findings or the subjective complaints showing a chronic disability of the right knee that is manifest to a degree of 10 percent or more, service connection cannot be granted under 38 C.F.R. § 3.317. 

In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for right knee tendonitis, and the benefit-of-the-doubt rule is not for application.  

Increased Rating
Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, 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 reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.
The Veteran’s entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2017).  Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal.  See Fenderson v. West, 12 Vet. App. 119 (1999).  But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disabilities in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2017).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

1. Entitlement to an evaluation in excess of 10 percent for service-connected asthma.
In a June 2010 rating decision, the RO granted service connection for asthma and assigned a 10 percent rating, effective November 3, 2009, under Diagnostic Code 6602.  The Veteran seeks a higher evaluation.
Under Diagnostic Code 6602, pertaining to asthma, bronchial, a 10 percent rating is assigned for asthma for FEV-1 of 71 to 80 percent of predicted value, or 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 under Diagnostic Code 6602 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.  38 C.F.R. § 4.97, Diagnostic Code 6602.

In applying the criteria under Diagnostic Code 6602, post-bronchodilator studies are required when pulmonary function testing (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.  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).  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, use the test result that the examiner states most accurately reflects the level of disability.  38 C.F.R. § 4.96(d)(6).  

The Board has reviewed all pertinent evidence of record.

In an April 2008 private medical record from Southwest Allergy and Asthma Center, P.A., pre-bronchodilator testing revealed FVC of 70 percent predicted, FEV-1 of 60 percent predicted, and FEV-1/FVC of 76 percent predicted.  Post-bronchodilator testing revealed FVC of 89 percent predicted, FEV-1 of 85 percent predicted, and FEV-1/FVC of 95 percent predicted

In an April 2008 record from Southwest Allergy and Asthma Center, P.A., testing revealed FEV-1 of 60 and 61 percent predicted, FEV1/FVC of 76 percent predicted and 78 percent predicted, and FVC of 79, 78, and 76 percent predicted. 

In a May 2008 record from Southwest Allergy and Asthma Center, P.A., testing revealed FEV-1 of 86, 84, and 82 percent predicted; FEV1/FVC of 98, 97, and 101 percent predicted; and  FVC of 87, 86, and 82 percent predicted. 

In a January 2010 pulmonary function report from Southwest Allergy and Asthma Center, testing revealed FVC of 83, 82, and 79 percent predicted; FEV-1 of 79, 78, and 74 percent predicted; and FEV1/FVC of 94 percent predicted.

In a March 2010 VA examination report, the Veteran reported taking Advair 50/250 and Albuterol on an as needed basis.  He denied any flare-up or attacks and reported that he had not had any related incapacitation since his 2005 hospitalization.  He reported an occasional productive cough.  He was diagnosed with mild bronchial asthma.

In a March 2010 VA pulmonary functions report consultation note, pre-bronchodilator testing revealed FVC of 101 percent predicted, FEV-1 of 92 percent predicted, and DLCO of 90 percent predicted.  Post-bronchodilator testing revealed FVC of 101 percent predicted and FEV-1 of 100 percent predicted.

In a January 2011 private medical record from P.G.D., D.O., it was noted that the Veteran’s asthma was well controlled with Advair 500/50 twice per day.  He was also prescribed Pro Air for acute asthma symptoms.

In an March 2011 private medical record from Advanced Allergy, Asthma, & Immunology Center, P.A., pre-bronchodilator testing revealed FVC of 91 percent predicted, FEV-1 of 81 percent predicted, and FEV-1/FVC of 89 percent predicted.  

In an March 2011 private medical record from Advanced Allergy, Asthma, & Immunology Center, P.A., pre-bronchodilator testing revealed FVC of 100 percent predicted, FEV-1 of 98 percent predicted, and FEV-1/FVC of 96 percent predicted.  

In an April 2011 private medical record from Advanced Allergy, Asthma, & Immunology Center, P.A., pre-bronchodilator testing revealed FVC of 87 percent predicted, FEV-1 of 76 percent predicted, and FEV-1/FVC of 88 percent predicted.  Post-bronchodilator testing revealed FVA of 95 percent predicted, FEV-1 91 percent predicted, and FEV-1/FVC of 96 percent predicted.

In an April 2011 private medical record from Advanced Allergy, Asthma, & Immunology Center, P.A., pre-bronchodilator testing revealed FVC of 98 percent predicted, FEV-1 of 95 percent predicted, and FEV-1/FVC of 97 percent predicted.

At the March 2013 hearing, the Veteran testified that he was required to use his inhaler 2 to 3 times per week and he used another medication twice per day to control asthma attacks.  

In a February 2014 private medical record from Advanced Allergy, Asthma, & Immunology Center, P.A., pre-bronchodilator testing revealed FVC of 96 percent predicted, FEV-1 of 89 percent predicted, and FEV-1/FVC of 92 percent predicted.  Post-bronchodilator testing revealed FVC of 99 percent predicted, FEV-1 of 96 percent predicted, and FEV-1/FVC of 97 percent predicted.  It was recommended that the Veteran take Symbicort 2 puff twice per day and Pro Air when having acute asthma symptoms.

In a May 2015 private medical record from Dr. Johnson, the physician directed the Veteran to start Flovent HFA aerosol, CFC free 110 mcg/inh, 2 puff(s), inhaled, 2 times a day.

In an October 2017 VA examination report, the Veteran reported that he no longer takes Advair, which he had previously been prescribed.  He reported that he ran out 2 years ago and now uses a rescue inhaler, albuterol, prior to exercise, as needed.  He reported he had not used the inhaler the last 2 months but was using it once per week in February and when he cuts the grass, most recently in August 2017.  He uses over-the-counter Xyzal and Claritin as needed, usually daily.  The examiner noted that the Veteran’s respiratory condition did not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy.  The Veteran used inhalational bronchodilator therapy on an intermittent basis.  The Veteran has not had any asthma attacks with episodes of respiratory failure in the past 12 months.  Post-bronchodilator testing revealed FVC of 95 percent predicted, FEV-1 of 81 percent predicted, and FEV-1/FVC of 70 percent.  Pre-bronchodilator testing revealed FVC of 99 percent predicted, FEV-1 of 81 percent predicted, and FEV-1/FVC of 67 percent predicted.  The examiner specifically indicated that FEV-1 percent predicted is the test that most accurately reflects the Veteran’s level of disability.  The examiner noted that the Veteran’s respiratory condition did not impact his ability to work.

Upon review of the claims file, the Board finds it appropriate to increase the evaluation assigned to the Veteran’s service-connected asthma to 30 percent for the period of November 3, 2009, to October 3, 2017.  Specifically, the Board notes that the January 2011 private medical record from P.G.D., D.O revealed that the Veteran was taking Advair 500/50 twice per day.  The Veteran also reported at the March 2013 hearing that he used a medication twice per day.  The February 2014 private medical record from Advanced Allergy, Asthma, & Immunology Center, P.A. noted that the Veteran was recommended to take an anti-inflammatory, Symbicort, 2 puffs, twice per day.  Finally, the May 2015 private medical record from Dr. Johnson directed the Veteran to start Flovent HFA aerosol twice per day.  In light of these prescribed medications taken on a daily basis, the Board finds that the Veteran’s service-connected asthma should be assigned a 30 percent evaluation for the period of November 3, 2009, to October 3, 2017, under Diagnostic Code 6602 for the use of daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication.  

With regard to assigning an evaluation in excess of 30 percent for the period of November 3, 2009, to October 3, 2017, the Board finds that none of the other medical evidence of record, to include the March 2010 VA examination report and all of the other private medical evidence discussed above, supports the assignment of an evaluation in excess of 30 percent under Diagnostic Code 6602.  In sum, the post-bronchodilator testing conducted at private facilities and at VA facilities during this time period does not reflect that the Veteran’s asthma manifests with FEV-1 of 55 percent predicted or less, or FEV-1/FVC of 55 percent or less.  The evidence from this time period does not reflect that the Veteran’s asthma has required at least monthly visits to a physician for required care of exacerbations, intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids, or the daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications.  Further, his asthma has not resulted in more than 1 attack per week with episodes of respiratory failure during this time period.  As such, an evaluation in excess of 30 percent cannot be assigned under Diagnostic Code 6602 for the period of November 3, 2009, to October 3, 2017.

For the period of October 4, 2017, to the present, the Board finds that the evidence of record does not support an evaluation in excess of 10 percent for the Veteran’s service-connected asthma.  The October 4, 2017, VA examination report noted that the Veteran used inhalational bronchodilator therapy on an intermittent basis, not on a daily basis.  Specifically, the Veteran reported that he was no longer taking daily medication for his asthma.  He reported that he no longer took Advair, which he had previously been prescribed, and that he ran out 2 years earlier.  He now uses a rescue inhaler, albuterol, prior to exercise, as needed – so, again, not daily.  While the October 2017 VA examination report revealed a post-bronchodilator test result of 70 percent for FEV-1/FVC and a pre-bronchodilator test result of 67 percent for FEV-1/FVC, the October 2017 VA examiner specifically stated that FEV-1 percent predicted is the test result that most accurately reflects the Veteran’s level of disability based on the condition being evaluated.  As post-bronchodilator testing revealed FEV-1 of 81 percent predicted, the Board finds the bronchodilator test results from the October 2017 VA examination do not meet the criteria for an evaluation in excess of 10 percent under Diagnostic Code 6602.  Moreover, there is no evidence in this examination report reflecting that his asthma has required at least monthly visits to a physician for required care of exacerbations, intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids, or the daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications.  Finally, this examination report does not reflect that his asthma has resulted in more than 1 attack per week with episodes of respiratory failure.  As there is no other medical evidence from the period of October 4, 2017, to the present contradicting the findings in the October 2017 VA examination report, an evaluation in excess of 10 percent cannot be assigned under Diagnostic Code 6602 for the period of October 4, 2017, to the present.

The Board has reviewed alternative diagnostic codes relating to the respiratory system, but finds that they are inapplicable in this case.  See 38 C.F.R. § 4.97 (2017).  

In summary, for the reasons and bases set forth above, the Board concludes that the evidence supports the assignment of a 30 percent rating, and no higher, for service-connected asthma for the period of November 3, 2009, to October 3, 2017, and the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for the period of October 4, 2017, to the present.  The benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application.  See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  Assignment of staged ratings has been considered and applied appropriately.  See Fenderson, supra.

2.  Entitlement to an evaluation in excess of 10 percent for service-connected cluster headaches.
In a June 2010 rating decision, the RO granted service connection for vascular headaches and assigned a 0 percent rating, effective November 3, 2009, under Diagnostic Code 8100.  In a May 2018 rating decision, the RO recharacterized the Veteran’s vascular headaches as cluster headaches and assigned a 10 percent evaluation, effective November 3, 2009.  The Veteran seeks a higher evaluation.
Under this diagnostic code, a noncompensable evaluation is assigned migraines with less frequent attacks.  A 10 percent evaluation is assigned for migraines with characteristic prostrating attacks averaging one in 2 months over last several months.  A 30 percent evaluation is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months.  A 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.71a, Diagnostic Code 8100 (2017).  This is the maximum evaluation awarded under this diagnostic code. 

The Board has reviewed all pertinent evidence of record.

In an October 2009 private treatment record from Dr. Suthakar, the Veteran reported a bout of headaches the previous year which lasted 3 weeks.

In March 2010, the Veteran underwent a VA examination, at which he reported a 3-week headache in 2006, a 6-week headache in 2008, and another 6-week headache in 2009.  The Veteran reported that he was not taking any medications currently for headaches and denied any effect on his daily occupation or daily activity.  His headaches were noted as moderate in severity.  He was diagnosed with vascular headaches.

In a July 2012 medical record from Edina Family Physician, P.A., the Veteran reported having a headache every other day for the past 3 weeks, which will last 7 hours.  In a November 2013 medical record from Neurology Center of San Antonio, P.A., the Veteran reported that he will have migraines for a while and then may go months or even a year without a headache before having several headaches again.  The headache may last up to a few hours, but if he takes Maxalt, it is gone within 30 minutes.  The Veteran reported that his last cluster headache started about a week ago and has become more frequent.  He reported that his prior episode last year lasted about 2 months.  In an August 2014 private medical record from Neurology Center of San Antonio, P.A., the Veteran reported that he has not had any headaches lately but would like to have medication on hand if his cluster headaches start back up since he would be moving to Boston. 

In a December 2014 private medical record from Dr. Johnson, it was noted that the Veteran was being seen for a hospital follow up following a visit to the emergency room for migraine headaches.  The Veteran reported that there was a period of time in 2012 when he had a migraine headache every day, which lasted 1 and ½ months.  He reported that he now gets a migraine infrequently.

At his March 2016 hearing, the Veteran reported that he began experiencing migraine headaches in 2006.  Ever since that time, he will experience headaches a couple of times per year which will last on average 1 to 2 weeks.  He asserted that he has been prescribed a medication that helps but that sometimes, when he does not have the medication with him, he will have to suffer a few hours before it hopefully goes away.  He reported that the headaches generally last 1 to 2 weeks, except for the last time when the headaches occurred every other day for 3 months.  The Veteran testified that he works as an independent contractor and that, during these periods of headaches, he did not apply for a lot of work.  In his previous jobs, he had bosses who would work around his headaches, to the extent possible.

In October 2017, the Veteran underwent a new VA headache examination, at which he reported cluster headaches about twice per year, occurring every other day for 10 to 14 days.  The examiner noted no known triggers.  He reported current treatment is sumatriptan as needed for abortive therapy.  He reported the medication works in 30 to 60 minutes to decrease the pain, if he takes it when the headaches first occur.  The Veteran reported that his symptoms include constant headache pain localized to one side of the head which worsens with physical activity, as well as nausea, sensitivity to light, sensitivity to sound, nasal congestion, and tearing.  The Veteran reported that the typical head pain lasts less than 1 day.  The Veteran reported experiencing prostrating attacks of headache pain with less frequent attacks over the last several months.  The examiner noted that the Veteran did not experience very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability.  The Veteran reported that he is unable to perform any type of work during the severe headaches (which last about 45-60 minutes on average).  The examiner concluded by noting that cluster headaches are the correct diagnosis, rather than vascular headaches, to characterize the Veteran’s headaches.

The Board finds that the evidence of record does not support an evaluation in excess of 10 percent for the Veteran’s service-connected cluster headaches.  Specifically, the medical evidence does not reflect that the Veteran’s service-connected cluster headaches manifest with characteristic prostrating attacks averaging once a month over last several months.  

While the medical evidence of record reflects that the Veteran went to the emergency room in December 2014 due to a headache and reported at that time a 4 to 6-week period in 2012 in which he got daily headaches, he also reported at the emergency room that he currently infrequently got migraine headaches.  In the November 2013 medical record from Neurology Center of San Antonio, P.A., the Veteran reported that he may go months or even a year without a headache before having cluster headaches.  He simultaneously reported that these headaches would be gone within 30 minutes if he took Maxalt.  At the March 2010 VA examination, the Veteran’s headaches were reported as moderate in severity and the Veteran denied any effect on his daily occupation or daily activity.  He reported cluster headaches in 2006, 2008, and 2009 lasting from 3 to 6 weeks.  However, he did not report symptoms associated with these headaches demonstrating that they were prostrating or that these headache attacks occurred at minimum every other month.  The Veteran testified at the March 2016 hearing that he experiences periods of headaches a couple of times per year.  He essentially indicated that these headaches were generally treatable with prescribed medication.  At the October 2017 VA examination, the Veteran again reported cluster headaches about twice per year.  While he reported that these cluster headaches could last 10 to 14 days, he also reported the medication worked in 30 to 60 minutes to decrease the pain, if he takes it when the headaches first occur.  The Veteran reported experiencing prostrating attacks of headache pain with less frequent attacks over the last several months.  

Therefore, as the evidence of record does not reflect that the Veteran’s service-connected cluster headaches manifest with characteristic prostrating attacks averaging once a month over last several months, or that his cluster headaches are productive of severe economic inadaptability, the Board finds that an evaluation in excess of 10 percent is not warranted under Diagnostic Code 8100 for any period of time on appeal. 

The Board has reviewed alternative diagnostic codes relating to neurological conditions, but finds that they are inapplicable in this case.  See 38 C.F.R. § 4.124a (2017).  

In summary, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application.  See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  Assignment of staged ratings is not for application.  See Fenderson, supra.
REASONS FOR REMAND
The issue of entitlement to service connection for tinnitus is remanded for additional development. 
Specifically, this issue was remanded by the Board for further development in August 2017 in order to obtain a VA medical opinion on the etiology of the Veteran’s claimed tinnitus.  In October 2017, a VA medical opinion was provided addressing the issue of direct service connection.  In the October 2018 Appellant’s Post-Remand Brief, the Veteran argued that his tinnitus is proximately due to or permanently aggravated by his service-connected cluster headaches.  In light of these new assertions, the Board finds that an addendum medical opinion should be obtained on this matter.  

The matter is REMANDED for the following action:
Return the claims file to the VA examiner who provided the October 2017 VA tinnitus opinion so that an addendum opinion may be obtained.  If the same examiner is not available, an opinion can be provided by another VA examiner.  The examiner should opine as to whether it is at least as likely as not that the Veteran’s tinnitus was caused or aggravated by his service-connected disabilities, to specifically include his service-connected cluster headaches.
 
It would be helpful if the examiner would use the following language, as may be appropriate: “more likely than not” (meaning likelihood greater than 50%), “at least as likely as not” (meaning likelihood of at least 50%), or “less likely than not"” or “unlikely” (meaning that there is a less than 50% likelihood).  The term “at least as likely as not” does not mean “within the realm of medical possibility.”  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  

 
MICHELLE L. KANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. Durham, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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