BRONCHIAL ASTHMA

Summary

The Veteran, a Marine Corps Veteran who served from May 1987 to May 1991, appeals the denial of an increased rating for dyspnea and service connection for bilateral hearing loss, as well as the remand of claims for allergic rhinitis, bilateral knee condition, and bilateral foot condition. The Board denied the increased rating for dyspnea, finding that the Veteran's pulmonary function test results and reported symptoms did not meet the criteria for a rating higher than 10 percent, despite intermittent bronchodilator use. The Board also denied service connection for bilateral hearing loss, concluding that the Veteran's audiometric test results from a VA examination did not meet the regulatory definition of a hearing disability, and the Veteran's lay assertions were not considered competent medical evidence. The Board remanded the claims for allergic rhinitis, bilateral knee condition, and bilateral foot condition due to pre-decision duty to assist errors, requiring new examinations to assess current severity and nexus to service.

Rationale

Veteran's dyspnea does not meet criteria for 30% rating.; FEV-1/FVC results and bronchodilator use do not support higher rating.; Most probative evidence does not support rating higher than 10%.

Full Decision Text

Citation Nr: A25070004
Decision Date: 08/19/25	Archive Date: 08/19/25

DOCKET NO. 230526-349290
DATE: August 19, 2025

ORDER

Entitlement to an initial disability rating higher than 10 percent for dyspnea is denied.

Entitlement to service connection for bilateral hearing loss is denied.

REMANDED

Entitlement to an initial compensable rating for allergic rhinitis is remanded.

Entitlement to service connection for a bilateral knee condition is remanded.

Entitlement to service connection for a bilateral foot condition is remanded.

FINDINGS OF FACT

1. The Veteran's dyspnea does not result in FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or requires daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication.

2. The most probative evidence of record does not show a current bilateral hearing loss disability for VA purposes.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial disability rating higher than 10 percent for dyspnea have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97a, Diagnostic Code 6602.

2. The criteria for entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from May 1987 until his honorable discharge in May 1991.

This matter comes before the Board of Veterans' Appeals (Board) from December 2022 and April 2023 rating decisions of the Department of Veterans Affairs (VA) Regional Office.

In the May 26, 2023, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.  Because the appeal is taken from separate rating decisions, the applicable evidentiary window is different for each of the issues on appeal.

For the Veteran's increased rating claim for dyspnea, the Board may only consider the evidence of record at the time of the April 2023 agency of original jurisdiction (AOJ) supplemental claim decision on appeal as well as any evidence submitted by the Veteran [or representative] with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303.  If evidence was submitted either (1) during the period after the AOJ issued the supplemental claim decision on appeal and prior to receipt of the VA Form 10182, or (2) more than 90 days following receipt of the VA Form 10182, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.303, 20.801.

For the Veteran's increased rating claim for allergic rhinitis, the Board may only consider the evidence of record at the time of the March 2022 AOJ decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran [or representative] with, or within 90 days from receipt of, the VA Form 10182.  For the Veteran's service connection claims for bilateral hearing loss, a bilateral knee condition, and a bilateral foot condition the Board may only consider the evidence of record at the time of the December 2021 AOJ decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran [or representative] with, or within 90 days from receipt of, the VA Form 10182.  If evidence was submitted either (1) during the period after the AOJ issued the supplemental claim decision on appeal and prior to receipt of the VA Form 10182, or (2) more than 90 days following receipt of the VA Form 10182, the Board did not consider it in its decision. 3 8 C.F.R. §§ 20.300, 20.303, 20.801.

1. Entitlement to an initial disability rating higher than 10 percent for dyspnea is denied.

The Veteran seeks an initial disability rating higher than 10 percent for his service-connected dyspnea, which is rated under Diagnostic Code 6602.

Under Diagnostic Code 6602, a 10 percent disability rating is warranted for Forced Expiratory Volume
 the period after the AOJ issued the supplemental claim decision on appeal and prior to receipt of the VA Form 10182, or (2) more than 90 days following receipt of the VA Form 10182, the Board did not consider it in its decision. 3 8 C.F.R. §§ 20.300, 20.303, 20.801.

1. Entitlement to an initial disability rating higher than 10 percent for dyspnea is denied.

The Veteran seeks an initial disability rating higher than 10 percent for his service-connected dyspnea, which is rated under Diagnostic Code 6602.

Under Diagnostic Code 6602, a 10 percent disability rating is warranted for Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent predicted, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy.  A 30 percent disability rating is warranted for bronchial asthma with FEV-1 of 56 to 70 percent predicted, or; the ratio of Forced Expiratory Volume in one second to FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication.  A 60 percent disability rating is warranted for bronchial asthma with 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 maximum 100 percent disability rating is warranted for bronchial asthma with 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; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications.

Upon review of the record, the Board concludes that the most probative evidence does not support finding that an initial disability rating higher 10 percent is warranted for the Veteran's dyspnea.

The Veteran underwent a VA examination in February 2023, during which he reported dyspnea with physical exertion.  The Veteran further reported using albuterol two to three times daily, approximately four times per week.  The examiner indicated that the Veteran requires intermittent inhalational bronchodilator therapy.  However, the Veteran's dyspnea does not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, antibiotics, or oral outpatient oxygen therapy.  Pulmonary function testing, prebronchodilator, revealed the following results: FVC 92 percent predicted, FEV-1 72 percent predicted, and FEV-1/FVC 78 percent predicted.  Post-bronchodilator testing revealed FVC at 104 percent predicated; FEV-1 at 109 percent predicted; and FEV-1/FVC at 105 percent predicted.  The examiner indicated that FEV-1 results most accurately reflect the Veteran's level of disability.

After review of the evidence of record, the Board finds that the Veteran's dyspnea does not approximate the criteria for a 30 percent rating, as the evidence does not show that his dyspnea results in FEV-1 of 56 to 70 percent predicted, or; the ratio of Forced Expiratory Volume in one second to FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication.  Therefore, the Board concludes that a disability rating higher than 10 percent under Diagnostic Code 6602 is not warranted for the Veteran's dyspnea at any time during the appeal period.

In sum, the most probative evidence is against the award of a rating higher than 10 percent for the Veteran's dyspnea, and the claim for an increased rating is denied

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the competing evidence is not in approximate balance, the doctrine is not for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Entitlement to service connection for bilateral hearing loss is denied.

The Veteran seeks service
 appeal period.

In sum, the most probative evidence is against the award of a rating higher than 10 percent for the Veteran's dyspnea, and the claim for an increased rating is denied

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the competing evidence is not in approximate balance, the doctrine is not for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Entitlement to service connection for bilateral hearing loss is denied.

The Veteran seeks service connection for bilateral hearing loss, which he asserts was caused by in-service noise exposure.

For the purposes of applying the law administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

Upon review of the record, the Board finds that the most probative evidence shows the Veteran does not have a current bilateral hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385.

The Veteran underwent a VA audiology examination in April 2021, during which audiometric findings failed to reveal a bilateral hearing loss disability under VA regulation.  See 38 C.F.R. § 3.385.  In this regard, during the June 2019 VA examination, the Veteran's puretone thresholds results were 25, 15, 25, 25, and 25 decibels in the right ear and 25, 10, 25, 25, and 30 decibels in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz, respectively.  The Veteran's speech discrimination score was 94percent bilaterally.  While the examiner noted some degree of bilateral sensorineural hearing loss, the audiometric findings on the examination do not meet the criteria to establish a bilateral hearing loss disability under VA regulation.  Id.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997).  A veteran seeking disability compensation must demonstrate a current disability.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Section 3.385 specifies that hearing acuity within the parameters reflected in the Veteran's VA audiology examination does not qualify as a current disability.  See McKinney v. McDonald, 28 Vet. App. 15, 25 (2016).  The Court has previously concluded that section 3.385 "reasonably interpreted what constitutes a hearing disability."  Id.  Here, the most probative evidence indicates the Veteran does not have a bilateral hearing loss disability that meets the criteria of 38 C.F.R. § 3.385.

While the Veteran believes he suffers from a current bilateral hearing loss disability that is related to service, the presence of a hearing loss disability is a matter not capable of lay observation and requires medical expertise and testing to determine.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, the extent and etiology of hearing loss are matters not capable of lay observation and require medical testing and expertise to determine.  Thus, the Veteran's opinion regarding the presence of a hearing loss disability is not competent medical evidence.  The Board finds the audiologic results of the VA examination to be significantly more probative than the Veteran's lay assertions.

In sum,
 of a hearing loss disability is a matter not capable of lay observation and requires medical expertise and testing to determine.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, the extent and etiology of hearing loss are matters not capable of lay observation and require medical testing and expertise to determine.  Thus, the Veteran's opinion regarding the presence of a hearing loss disability is not competent medical evidence.  The Board finds the audiologic results of the VA examination to be significantly more probative than the Veteran's lay assertions.

In sum, as there is no probative evidence of a current hearing loss disability in accordance with 38 C.F.R. § 3.385, the Veteran's claim for service connection for bilateral hearing loss is denied.

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the competing evidence is not in approximate balance, the doctrine is not for application.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

1. Entitlement to an initial compensable rating for allergic rhinitis is remanded.

2. Entitlement to service connection for a bilateral knee condition is remanded.

3. Entitlement to service connection for a bilateral foot condition is remanded.

The Veteran seeks an initial compensable rating for his service-connected allergic rhinitis.  At the time of the March 2022 rating decision which granted service connection for allergic rhinitis, the Veteran has most recently been afforded a VA examination in April 2018.  The medical evidence of record demonstrates that the Veteran's claimed disability may have worsened.  Therefore, as the Veteran most recently underwent a VA examination in April 2018, the Board finds that a remand is necessary to correct a pre-decision duty to assist error and provide the Veteran with an examination to ascertain the current severity of his service-connected allergic rhinitis.

Regarding the Veteran's claims for entitlement to service connection for bilateral knee and foot condition, the Veteran underwent VA examinations in September 2021.  The examiner indicated that the Veteran has diagnoses of bilateral knee osteoarthritis and bilateral foot degenerative arthritis.  However, the examiner failed to provide an opinion as to whether the Veteran's bilateral knee and bilateral foot arthritis are related to service.  As such, the Board finds that remand is required to correct a pre-decision duty to assist error and obtain an additional examination and opinion.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected allergic rhinitis.  The claims file should be reviewed by the examiner.  All necessary tests should be performed, and the results reported.  All symptomatology associated with the Veteran's sinusitis should be reported.

2. Schedule the Veteran for an appropriate examination to address the Veteran's claim for service connection for a left knee condition.  Following review of the claims file and examination of the Veteran, the examiner should opine as to whether the Veteran's claimed bilateral knee osteoarthritis and bilateral foot degenerative arthritis were caused by or are otherwise related to service.  The examiner should explain why or why not

In rendering the requested opinions, the examiner must consider and discuss all relevant medical evidence, and all lay assertions as to the nature, onset, and continuity of symptoms.  The examiner is advised that the Veteran is competent to report his injuries, symptoms, and history, which the Board has generally found credible, and that his assertions in this regard must be considered and discussed in formulating the requested opinions.  If lay assertions in any regard are discounted, the examiner should clearly state and explain why.

A complete rationale for all opinions must be provided.  If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

 

G. William Riggs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Lance, 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.