BRONCHITIS

Summary

The veteran, who served from June 1987 to May 1993, appeals the denial of an increased rating for his service-connected asthma with bronchitis. The veteran sought an increased rating, pursuing the claim through a Higher-Level Review and subsequently this appeal. The Board reviewed evidence of record up to the agency of original jurisdiction's decision and evidence submitted during the appeal period. The primary issue was whether the veteran's asthma with bronchitis warranted a 100 percent rating under the appropriate diagnostic code. The Board considered VA treatment records, private provider notes from Dr. K, and VA examinations. Evidence indicated the veteran used albuterol, Symbicort, and Spiriva for his asthma, with flares treated by antibiotics and corticosteroids. He was also diagnosed with obstructive sleep apnea and prescribed nocturnal pulse oximetry and supplemental oxygen with exertion. A VA examination in November 2019 documented outpatient oxygen therapy for asthma. A subsequent May 2020 VA examination clarified that oxygen therapy was required for both service-connected asthma/bronchitis and non-service-connected sleep apnea, with the examiner opining it was required for both. The Board found that the veteran's asthma with bronchitis requires outpatient oxygen therapy, which aligns with Diagnostic Code 6600, not the previously assigned Diagnostic Code 6602. The Board found the veteran's statements, private treatment records, and VA examiner opinions probative. Service connection for asthma with bronchitis is granted at 100 percent, effective June 13, 2019, based on the need for outpatient oxygen therapy.

Rationale

Requires outpatient oxygen therapy; Warranted change from DC 6602 to DC 6600; Supported by VA treatment records, private provider notes, and VA examiner opinions

Full Decision Text

Citation Nr: A26018469
Decision Date: 03/02/26	Archive Date: 03/02/26

DOCKET NO. 201013-116466
DATE: March 2, 2026

ORDER

Entitlement to a 100 percent rating for the service-connected asthma with bronchitis, effective June 13, 2019, is granted.

FINDING OF FACT

The Veteran's service-connected asthma with bronchitis requires outpatient oxygen therapy. 

CONCLUSION OF LAW

The criteria for a 100 percent rating for the service-connected asthma with bronchitis, effective June 13, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.97, Diagnostic Code 6600.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1987 to May 1993.

In the October 13, 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on July 10, 2024.

Therefore, the Board may only consider the evidence of record at the time of the June 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). 

The Veteran submitted evidence on July 15, 2024, which the Board considered. The AOJ uploaded VA examinations and treatment records to the claims file within the 90 days after the hearing, and these records were not considered by the Board, as they were not submitted by the Veteran or his representative. The Board also did not consider the evidence submitted by the Veteran outside the evidentiary period, including the private treatment records submitted in November 2021, November 2023, February 2023, May 2023, and June 2024, unless the Veteran resubmitted the evidence during the evidentiary period. 

If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 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. 

Finally, VA regulations provide that, "[u]pon request, a claimant is entitled to a hearing on any issue involved in a claim...before VA issues notice of a decision on an initial or supplemental claim." 38 C.F.R. § 3.103(d)(1). That regulation does not indicate that the claimant is entitled to pre-decisional notice of this optional hearing. In fact, 38 C.F.R. § 3.103(b)(1) provides that, following a decision, "[c]laimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief... [including] the right to a hearing on any issue involved in the claim as provided in paragraph (d) of this section...." Read together with § 3.103(d), the only notice § 3.103(b) requires is that a claimant be provided notice of the right for a hearing with notification of the decision (by definition, a post-decisional notice). In November 2022, VA amended VA Form 21-526EZ and in May 2024 VA amended VA Form 20-0995 to inform claimants of the right to a hearing at any time during the claims process. The claims in this appeal were filed before the forms were amended. Because the Veteran was afforded a Board hearing in July 2024, any error in the failure to inform the Veteran of the right to a pre-decisional hearing was harmless and there is no due process violation in adjudicating the claims at this time.

The Veteran seeks an increased rating higher than 30 percent for the service-connected asthma with bronchitis. He filed a claim for an increased rating on October 22, 
 notice). In November 2022, VA amended VA Form 21-526EZ and in May 2024 VA amended VA Form 20-0995 to inform claimants of the right to a hearing at any time during the claims process. The claims in this appeal were filed before the forms were amended. Because the Veteran was afforded a Board hearing in July 2024, any error in the failure to inform the Veteran of the right to a pre-decisional hearing was harmless and there is no due process violation in adjudicating the claims at this time.

The Veteran seeks an increased rating higher than 30 percent for the service-connected asthma with bronchitis. He filed a claim for an increased rating on October 22, 2019, which he continuously pursued via a request for Higher-Level Review in January 2020 and this appeal. Therefore, the relevant rating period begins October 22, 2019, the date the Veteran applied for a higher rating, although the Board will generally review evidence from the one year "look back period" preceding the submission of the claim to see if worsening was shown. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). However, while the Veteran's continuously pursued claim is before the Board on appellate review, there is a defined evidentiary record, as discussed above. 

In October 2024, the AOJ granted service connection for interstitial lung disease, combined the disability with his service-connected asthma and bronchitis, and increased the rating to 60 percent, effective June 27, 2024. Because the increase is based on a period outside the present appeal period, it is not before the Board. 

The Veteran's asthma with bronchitis is rated at 30 percent under 38 C.F.R. § 4.97, Diagnostic Code 6602 during the appeal period. Under Diagnostic Code 6602, a 60 percent rating is warranted for: FEV-1 of 41 to 55 percent predicted, or the ratio of FEV-1 to FVC is 40 to 55 percent; or there are 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 are required. See id. A 100 percent rating is warranted for: FEV-1, or the ratio of FEV-1 to FVC, is less than 40 percent predicted; or there is more than one attack per week with episodes of respiratory failure; or daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications is required. See id. 

Diagnostic Code 6600 governs bronchitis, which assigns a 100 percent rating for: FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. See 38 C.F.R. § 4.97, Diagnostic Code 6600.

Turning to the evidence, the Veteran's VA treatment records show that he was treating his asthma with allergy medication, albuterol, Singulair, and Symbicort beginning in October 2018. A January 2019 VA record noted that a home oxygen consultation was current for his obstructive sleep apnea. In May 2019, he began treatment with a private provider, Dr. K. Dr. K noted that the Veteran's oxygen levels occasionally drop into the mid-80s with exertion. He was assessed with severe persistent asthma and instructed to continue his albuterol inhaler, albuterol nebulization solution, Symbicort, and Spiriva. He was also assessed with obstructive sleep apnea, and Dr. K wrote that "if [his compliance card] confirms efficacy, can then check nocturnal pulse oximetry to evaluate if he needs supplemental oxygen through CPAP while sleeping." He followed up on June 13, 2019, at which time he reported that his asthma or bronchitis flares 4 to 5 times per year on average, and these exacerbations are treated with antibiotics and corticosteroids. Dr. K wrote that his asthma was stable on the current
. He was assessed with severe persistent asthma and instructed to continue his albuterol inhaler, albuterol nebulization solution, Symbicort, and Spiriva. He was also assessed with obstructive sleep apnea, and Dr. K wrote that "if [his compliance card] confirms efficacy, can then check nocturnal pulse oximetry to evaluate if he needs supplemental oxygen through CPAP while sleeping." He followed up on June 13, 2019, at which time he reported that his asthma or bronchitis flares 4 to 5 times per year on average, and these exacerbations are treated with antibiotics and corticosteroids. Dr. K wrote that his asthma was stable on the current regimen and that he did not have any flares since starting a more intense regimen. Regarding his sleep apnea, Dr. K ordered nocturnal pulse oximetry to determine if he needed supplemental oxygen through his CPAP machine. He was also assessed with exercise hypoxemia and instructed to use supplemental oxygen with exertion. Later that month, the Veteran contacted VA regarding obtaining oxygen equipment. In July 2019, he met with his VA pulmonologist who wrote that "it is unclear why he is on oxygen at this point as prior chest imaging demonstrating no significant structural abnormalities and PFTs had no evidence of diffusion impairment." Regardless, his VA pulmonologist instructed him to continue with supplemental oxygen as needed with exertion. Subsequent VA treatment records show that he uses oxygen at night and as needed with exercise. 

The Veteran was afforded a VA respiratory examination in November 2019. The examiner documented that the Veteran was on outpatient oxygen therapy to treat his asthma. In May 2020, the AOJ obtained a new VA examination and medical opinion to clarify whether the Veteran's oxygen therapy was required for his service-connected asthma with bronchitis or his nonservice-connected sleep apnea, given the conflicting evidence. The examiner diagnosed him with asthma and bronchitis, and documented his conditions require intermittent courses or bursts of systemic corticosteroids, cause exacerbations less frequently than monthly, and require outpatient oxygen therapy. The examiner opined that the oxygen therapy is required for his service-connected asthma with bronchitis as well as his nonservice-connected obstructive sleep apnea, as both disorders cause significant oxygen desaturation. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question must be attributed to the service-connected disability).

After considering the evidence, the Board finds that a change in diagnostic codes from Diagnostic Code 6602 to 6600 for the service-connected asthma with bronchitis rating is warranted for the appeal period. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. See id. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, a change is warranted because the evidence shows that his asthma with bronchitis requires outpatient oxygen therapy, which is contemplated by Diagnostic Code 6600 but not by Diagnostic Code 6602.  

Based on the foregoing, the Board finds that a 100 percent rating under Diagnostic Code 6600 is warranted for his service-connected asthma with bronchitis because his disability requires outpatient oxygen therapy. In rendering this decision, the Board found the Veteran's statements, his private treatment records, and the VA examiner's opinions highly probative. The Board finds that June 13, 2019 is the appropriate effective date because he was prescribed supplemental oxygen on this date and it demonstrates worsening within one year of his increased rating claim. Accordingly, the Board finds that the criteria for a 100 percent rating under Diagnostic Code 6600 are met, effective June 13, 2019, and the claim for an increased rating is granted.

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Lavan

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. 


 he was prescribed supplemental oxygen on this date and it demonstrates worsening within one year of his increased rating claim. Accordingly, the Board finds that the criteria for a 100 percent rating under Diagnostic Code 6600 are met, effective June 13, 2019, and the claim for an increased rating is granted.

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Lavan

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.