SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The veteran, who served in the U.S. Navy from January 1968 to October 1969 and again from June 1972 to September 1991, appeals the denial of an increased rating for obstructive sleep apnea (OSA) with bronchitis and a history of asthma, and the dismissal of his claim for Total Disability based on Individual Unemployability (TDIU). The Board found that the evidence did not support an increased rating for OSA beyond the 50 percent already assigned, as the veteran's condition did not meet the criteria for higher evaluations under Diagnostic Code 6847, nor did the evidence suggest his bronchitis or asthma warranted higher ratings under Diagnostic Codes 6600 or 6602, respectively. The Board noted that the veteran's OSA required a CPAP machine, consistent with the 50 percent rating, but did not meet criteria for higher ratings such as chronic respiratory failure or tracheostomy. Similarly, his bronchitis and asthma did not meet the specific pulmonary function test results or treatment frequency required for higher ratings. Regarding the TDIU claim, the Board dismissed the appeal, citing res judicata, as a prior Board decision in September 2025 had already denied the TDIU claim, making the issue unadjudicable in the current appeal. The Board's decision denies the increased rating for OSA and dismisses the TDIU appeal.

Rationale

Evidence does not meet criteria for higher rating under DC 6847 for OSA.; Veteran's OSA manifested by CPAP use and daytime hypersomnolence, not chronic respiratory failure or tracheostomy.; Evidence does not meet criteria for higher rating for bronchitis or asthma under DC 6600/6602.

Full Decision Text

Citation Nr: A26039777
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 250425-537880
DATE: April 28, 2026

ORDER

A rating in excess of 50 percent for obstructive sleep apnea (OSA) with bronchitis and history of asthma, is denied.

The present appeal with respect to the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is dismissed.

FINDINGS OF FACT

1. The Veteran's OSA is not shown to have been manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale, or by the requirement of a tracheostomy.

2.  The Veteran's bronchitis is not shown to have been manifested by FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).

3. The Veteran's asthma is not shown to have been manifested by FEV-1 of 40 to 55 percent of predicted, or; FEV-1/FVC is 40 to 55 percent of predicted, or; at least monthly visits to a physician are required for care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids are required.  

4. While the present appeal was pending, a September 9, 2025, Board decision denied entitlement to a TDIU.

CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 50 percent for obstructive sleep apnea have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Codes 6847, 6602, 6600.

2.  The Board is barred by res judicata from readjudicating the issue seeking entitlement to TDIU as presented in this appeal.  38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100, 20.1104.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from January 1968 to October 1969, and from June 1972 to September 1991.  His decorations include the Vietnam Service Medal, the Vietnam Campaign Medal, and the Combat Action Ribbon.

This matter comes to the Board on appeal from an March 2025 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  The RO granted service connection for OSA, effective June 23, 2010, thereby recharacterizing the Veteran's previously service-connected respiratory disability as OSA with bronchitis and history of asthma and assigning a 50 percent rating, effective June 23, 2010.  See 38 C.F.R. § 4.96 (prohibiting the separate evaluation of disabilities rated under Diagnostic Codes 6600 through 6817, and 6822 through 6847).  The Veteran timely appealed to the Board by filing a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) in April 2025, selecting the hearing review option.  38 C.F.R. §§ 20.201, 20.202(b)(2).

By correspondence received on August 21, 2025, the Veteran, through his representative, withdrew his request for a Board hearing.  When a request for hearing is withdrawn, the Board's decision is based on review of the evidence of record at the time of issuance of the rating decision on appeal and any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal.  38 C.F.R. § 20.302(b).  The Board cannot consider (1) evidence submitted during the period after the AOJ issued the decision on appeal and before the withdrawal was received, or (2) evidence submitted more than 90 days after the withdrawal was received.  38 C.F.R. § 20.302.

As set out below, the Board is entering a decision denying the Veteran's claim of entitlement to an increased rating for OSA.  If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the Veteran's claim.  
 or his representative within 90 days following receipt of the withdrawal.  38 C.F.R. § 20.302(b).  The Board cannot consider (1) evidence submitted during the period after the AOJ issued the decision on appeal and before the withdrawal was received, or (2) evidence submitted more than 90 days after the withdrawal was received.  38 C.F.R. § 20.302.

As set out below, the Board is entering a decision denying the Veteran's claim of entitlement to an increased rating for OSA.  If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the Veteran's claim.  38 C.F.R. § 20.300.  If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that 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.

An initial rating in excess of 50 percent for obstructive sleep apnea (OSA) with bronchitis with history of asthma is denied.

Historically, in a November 1995 rating decision, the Veteran was granted service connection for bronchitis with a history of asthma and assigned a noncompensable (zero percent) rating pursuant to Diagnostic Code (DC) 6600.  In a February 2004 rating decision, the AOJ increased the rating from noncompensable to 30 percent pursuant to DC 6600 effective September 2, 2003.  In June 2010, the Veteran filed an informal claim of service connection for sleep apnea secondary to his service-connected asthma.  See June 2010 VA Form 21-4138.  In a March 2025 rating decision, the AOJ granted service connection for sleep apnea and assigned a 50 percent rating for obstructive sleep apnea with bronchitis and a history of asthma pursuant to DC 6602-6847, effective June 23, 2010, the date of receipt of the Veteran's service connection claim.

The Veteran seeks an initial rating higher than 50 percent for his obstructive sleep apnea with bronchitis and a history of asthma.

Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the evaluations to be assigned to various disabilities.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

If there is a question as to which of two evaluations shall be applied, 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.  If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

As previously mentioned, the Veteran's OSA with bronchitis with asthma has been evaluated as 50 percent disabling under Diagnostic Codes 6602-6847.  38 C.F.R. § 4.97, Diagnostic Code 6602, 6847.  Hyphenated diagnostic codes are used when a rating under one code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27.  Diagnostic Code 6602 pertains to bronchial asthma under the Diseases of the Trachea and Bronchi of the Respiratory System and Diagnostic Code 6847 pertains to sleep apnea syndromes (obstructive, central, mixed) under Restrictive Lung Disease.  38 C.F.R. § 4.97, Diagnostic Code
 Codes 6602-6847.  38 C.F.R. § 4.97, Diagnostic Code 6602, 6847.  Hyphenated diagnostic codes are used when a rating under one code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27.  Diagnostic Code 6602 pertains to bronchial asthma under the Diseases of the Trachea and Bronchi of the Respiratory System and Diagnostic Code 6847 pertains to sleep apnea syndromes (obstructive, central, mixed) under Restrictive Lung Disease.  38 C.F.R. § 4.97, Diagnostic Code 6602, 6847.

Respiratory disorders are rated under Diagnostic Codes 6600 through 6817 and 6822 through 6847.  Ratings under those diagnostic codes will not be combined with each other.  Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher rating only where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.96 (a).

Effective October 6, 2006, VA added provisions that clarify the use of pulmonary function tests (PFTs) in evaluating respiratory conditions.  See 71 Fed. Reg. 52459 (Sept. 6, 2006) (codified at 38 C.F.R. § 4.96 (d)).  That is, 38 C.F.R. § 4.96 (d) was added to the Rating Schedule, applicable to all applications for benefits received by VA on or after October 6, 2006.  In the present case, the Veteran filed his claim subsequent to the effective date of the change.  Therefore, these amendments are applicable to the claim on appeal.

Under Diagnostic Code 6847 (sleep apnea) a noncompensable rating is assigned for asymptomatic sleep apnea but with documented sleep disorder breathing.  A 30 percent rating is assigned for sleep apnea that is manifested by persistent day-time hypersomnolence.  A 50 percent rating is assigned for sleep apnea that requires the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine.  Finally, a 100 percent rating is assigned for sleep apnea manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale, or if the condition requires tracheostomy.  See 38 C.F.R. § 4.97, DC 6847.

Diagnostic Codes 6600-6604 are classified under VA's Rating Schedule as Diseases of the Trachea and Bronchi. Id.

Diagnostic Code 6600 (bronchitis) provides that Forced Expiratory Volume in one second (FEV-1) of 71-to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66 to 80 percent predicted, is assigned a 10 percent rating.  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; DLCO (SB) 56 to 65 percent predicted.  A 60 percent rating is assigned for FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).  Finally, a 100 percent rating is assigned 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, DC 6600.

Under Diagnostic Code 6602 (asthma) a 10 percent rating is assigned for bronchial asthma when FEV-1 is 71 to 80 percent of the predicted value, or; FEV-1/FVC
; 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, DC 6600.

Under Diagnostic Code 6602 (asthma) a 10 percent rating is assigned for bronchial asthma when FEV-1 is 71 to 80 percent of the predicted value, or; FEV-1/FVC is 71 to 80 percent of the predicted value, or; intermittent inhalational or oral bronchodilator therapy is used.  A 30 percent rating is assigned when FEV-1 is 56 to 70 percent of predicted, or; FEV-1/FVC is 56 to 70 percent of predicted, or; daily inhalational or oral bronchodilator therapy is used, or; inhalational anti-inflammatory medication is used.  A 60 percent rating is assigned when FEV-1 is 40 to 55 percent of predicted, or; FEV-1/FVC is 40 to 55 percent of predicted, or; at least monthly visits to a physician are required for care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids are required.  A 100 percent rating is assigned when FEV-1 is less than 40 percent of predicted, or; FEV-1/FVC is less than 40 percent of 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.  38 C.F.R. § 4.97, DC 6602.

The amended regulation 38 C.F.R. § 4.96 (d), entitled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845," has seven subsections.  38 C.F.R. § 4.96 (d)(1)-(7).  The provisions of 38 C.F.R. § 4.96 (d)(1)-(7) specifically apply here for Diagnostic Code 6600 for the Veteran's service-connected bronchitis.

As set forth under 38 C.F.R. § 4.96 (d)(1)-(7):

(1) PFTs are required except: (i) when the results of a maximum exercise capacity test are of record and are 15 ml/kg/min or less; if a maximum exercise capacity test is not of record, evaluation is based on alternative criteria; (ii) when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) when there have been one or more episodes of acute respiratory failure; or (iv) when outpatient therapy oxygen is required.  38 C.F.R. § 4.96 (d)(1).

(2) If the DLCO (SB) test is not of record, evaluation is based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case.  38 C.F.R. § 4.96 (d)(2).

(3) When the PFTs are not consistent with clinical findings, evaluation is based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a given case.  38 C.F.R. § 4.96 (d)(3).

(4) Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator tests should not be done and states why.  38 C.F.R. § 4.96 (d)(4).

(5) When evaluating based on PFTs, post-bronchodilator results are used in applying evaluation criteria in the Rating Schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator values are used for rating purposes.  38 C.F.R. § 4.96 (d)(5).

(6) When there is a disparity between the
 results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator tests should not be done and states why.  38 C.F.R. § 4.96 (d)(4).

(5) When evaluating based on PFTs, post-bronchodilator results are used in applying evaluation criteria in the Rating Schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator values are used for rating purposes.  38 C.F.R. § 4.96 (d)(5).

(6) When there is a disparity between the results of different PFTs (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would be different depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is used.  38 C.F.R. § 4.96 (d)(6).

(7) Finally, if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned.  38 C.F.R. § 4.96 (d)(7).

When evaluating based on pulmonary function testing, VA is to use post-bronchodilator results unless the post-bronchodilator results were poorer than pre-bronchodilator results, in which case the latter should be used instead.  38 C.F.R. § 4.96 (d)(5).  When there is a disparity between the results of different pulmonary function testing (e.g., FEV-1, FVC, or FEV-1/FVC) such that the evaluation would be different depending on which test was used, the Board must use the test result that the examiner states most accurately reflect the level of disability.  38 C.F.R. § 4.96 (d)(6).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other.  Esteban, 6 Vet. App. at 262; 38 C.F.R. § 4.14.

Notably, when there are two co-existing respiratory conditions (including for Diagnostic Codes 6602 and 6847, for asthma and sleep apnea), a single rating will be assigned under the Diagnostic Code that reflects 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).  This has been interpreted to mean that VA will evaluate coexisting service-connected respiratory conditions covered by § 4.96 (a) under the criteria enumerated in the predominant disability's Diagnostic Code.  See Urban v. Shulkin, 29 Vet. App. 82, 95 (2017).

Rating coexisting respiratory conditions is governed by 38 C.F.R. § 4.96 (a).  In this case, the Veteran is assigned a single disability rating for his coexisting respiratory conditions of asthma and obstructive sleep apnea.  Section 4.96 (a) states that ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other.  Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847.  As noted, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation.

The Board is bound by 38 C.F.R. § 4.96 (a), which specifically prohibits the assignment of separate evaluations for asthma, bronchitis, 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.")

Turning to the evidence
 is bound by 38 C.F.R. § 4.96 (a), which specifically prohibits the assignment of separate evaluations for asthma, bronchitis, 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.")

Turning to the evidence, in June 2013 the Veteran underwent a VA respiratory conditions examination.  Obstructive sleep apnea (OSA) since March 2010 was diagnosed.  However, the examination was incomplete on the basis that the examiner stated that the Veteran's claim did not involve an in-service event.

In October 2013 the Veteran underwent a private sleep apnea examination.  The Veteran did not require continuous medication for control of his sleep disorder, but did require the use of a breathing assistance device such a CPAP machine.  He did not have any findings, signs or symptoms attributable to sleep apnea.  A March 2010 sleep study performed at a VA Medical Center indicated mild OSA.  The physician opined that sleep apnea did not impact the Veteran's ability to work.

In June 2020 the Veteran underwent a second VA respiratory conditions examination at which time he stated that he had experienced snoring and sleep interruption since the 1980s.  His OSA was stable with no recent treatment or episodes of bronchitis of record.  Asthma was also diagnosed.  The examiner stated that the Veteran was service connected for bronchitis with a history of asthma with no recent evidence of treatment or exacerbations.  The examiner opined that the Veteran's respiratory disability did not impact the Veteran's ability to work.

In November 2022, the Veteran underwent a third VA respiratory conditions examination during which the examiner diagnosed bronchitis with asthma.  He did not have any asthma attacks with episodes of respiratory failure in the past 12 months.  He did not have any physician visits for required care of exacerbations.  His respiratory condition did not require the use of oral bronchodilator or use of oral or parenteral corticosteroid medications.

A November 2022 PFT report reflects that the Veteran's FEV-1 was 85.7 percent of predicted, on post-bronchodilator testing, and that his FEV-1/FVC was 83 percent of predicted, on post-bronchodilator testing.  DLCO was 59 percent of predicted, on pre-bronchodilator testing.  The examiner stated that the Veteran's DLCO most accurately reflected the Veteran's level of disability.

In January 2024 the Veteran underwent a VA sleep apnea examination.  The Veteran's OSA required the use of a CPAP machine, but did not require continuous medication for control of his sleep disorder.  Findings, signs, or symptoms attributed to sleep apnea consisted of persistent daytime hypersomnolence.  There were no other pertinent physical findings, complications, conditions, signs or symptoms of his OSA.  The examiner opined that sleep apnea affected the Veteran's ability to work due to problems with daytime sleepiness and difficulty with concentration. 

In March 2025 the Veteran underwent a second VA sleep apnea examination.  Continuous medication was not required for control of sleep apnea, but the Veteran required the use of a CPAP machine.  Findings, signs, or symptoms attributed to sleep apnea consisted of persistent daytime hypersomnolence.  There were no other pertinent physical findings, complications, conditions, signs or symptoms.  The examiner opined that sleep apnea affected the Veteran's ability to work due to difficulty with concentration and excessive daytime sleepiness.

In light of the above, the Board finds that the evidence is persuasively against a finding that the Veteran's OSA with bronchitis and a history of asthma warrants an initial rating in excess of 50 percent at any time during the period on appeal under Diagnostic Code 6847, 6600, or 6602.

The Veteran's OSA has been manifested by the requirement of the use of an assistive breathing device, which warrants a 50 percent rating under Diagnostic Code 6847.  A sympathetic reading of the rating criteria and relevant disability ratings shows that the Veteran's sleep apnea is the predominant disability, as it warrants a higher rating based on the Veteran's current symptoms.  However, at no time during the appeal period does the evidence suggest, nor has the Veteran
 evidence is persuasively against a finding that the Veteran's OSA with bronchitis and a history of asthma warrants an initial rating in excess of 50 percent at any time during the period on appeal under Diagnostic Code 6847, 6600, or 6602.

The Veteran's OSA has been manifested by the requirement of the use of an assistive breathing device, which warrants a 50 percent rating under Diagnostic Code 6847.  A sympathetic reading of the rating criteria and relevant disability ratings shows that the Veteran's sleep apnea is the predominant disability, as it warrants a higher rating based on the Veteran's current symptoms.  However, at no time during the appeal period does the evidence suggest, nor has the Veteran otherwise expressly contended, that his OSA has been manifested by chronic respiratory failure with carbon dioxide retention, or cor pulmonale, or that the condition required a tracheostomy.  Accordingly, the assignment of the next highest, 100 percent, rating is not warranted. 

Turning next to bronchitis, the Board finds that the evidence is persuasively against a finding that a higher rating can be assigned on that basis.  At no time during the appeal period does the evidence suggest, nor has the Veteran otherwise expressly contended, that his bronchitis has been manifested FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).  Accordingly, the assignment of the next highest, 60 percent, rating is not warranted.

Finally, the Board finds that the evidence is persuasively against a finding that a higher rating can be assigned under Diagnostic Code 6602.  At no time during the appeal period does the evidence suggest, nor has the Veteran otherwise expressly contended, that his asthma has been manifested by FEV-1 that is 40 to 55 percent of predicted, or; FEV-1/FVC that is 40 to 55 percent of predicted, or; at least monthly visits to a physician that are required for care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids that are required.  Accordingly, the assignment of the next highest, 60 percent, rating is not warranted.

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the evidence is persuasively against the Veteran's claim, that doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. § 4.3.  The appeal of this issue is denied.

Dismissal

For the reasons explained below, the Board finds that the appropriate course of action in this case is to dismiss the appeal for a TDIU because the Board is barred by res judicata from adjudicating that issue.

The concept of res judicata requires that there be only one valid decision on any adjudicated issue or claim; that decision is the only appropriate target for any future collateral attack on that issue or claim.  See Hazan v. Gober, 10 Vet. App. 511, 520-21 (1997) (holding that where an unappealed final decision is determinative of an issue, an appellant is collaterally estopped from "relitigating the same issue based upon the same evidence, albeit for a different purpose").  Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded.  See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (stating that the "purpose of the rule of finality is to preclude repetitive and belated readjudications of veterans' benefits claims") (quoting Cook v. Principi, 318 F.3d 1334, 1339)); see also Bissonnette v. Principi, 18 Vet. App. 105, 112 (2004) ("In essence, the res judicata precedent ensures that a litigant may have his or her day in Court, but not two or three.").

By way of background, the Veteran claimed service connection for, among other things, sleep apnea in June 2010.  The AOJ denied that claim in a March 2011 legacy rating decision.  In April 2011, the Veteran filed a Notice of Disagreement (NOD).  The Veteran filed a
 benefits claims") (quoting Cook v. Principi, 318 F.3d 1334, 1339)); see also Bissonnette v. Principi, 18 Vet. App. 105, 112 (2004) ("In essence, the res judicata precedent ensures that a litigant may have his or her day in Court, but not two or three.").

By way of background, the Veteran claimed service connection for, among other things, sleep apnea in June 2010.  The AOJ denied that claim in a March 2011 legacy rating decision.  In April 2011, the Veteran filed a Notice of Disagreement (NOD).  The Veteran filed a second claim for service connection for sleep apnea in January 2012.  The AOJ denied that claim in a legacy rating decision. In March 2012 the Veteran filed another claim for service connection for sleep apnea, which was denied by the AOJ in a September 2013 legacy rating decision.  In March 2014 the Veteran perfected an appeal to the Board.  

Following a series of adjudicatory actions over a period of years, in November 2022 the Board remanded the sleep apnea claim and found that the issue of TDIU had been raised as part of the Veteran's increased rating claims for bilateral hearing loss and diabetes mellitus.  See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009).  In a March 2024 Supplemental Statement of the Case the AOJ denied service connection for sleep apnea and entitlement to a TDIU.  In a January 2025 decision, the Board again remanded the claims of service connection for sleep apnea and entitlement to a TDIU.

In March 2025 the AOJ entered the AMA rating decision here at issue, establishing service connection for sleep apnea.  In April 2025, the Veteran filed a VA Form 10182 (NOD) in which he requested an increased initial rating for sleep apnea (with bronchitis and a history of asthma) and stated that the AOJ "Failed to consider TDIU as implicitly denied" giving rise to the current AMA appeal.

While the Veteran's AMA appeal was pending, in a September 2025 decision, issued in the legacy system, the Board denied the claim.  That decision fully subsumed and adjudicated the issue that is currently before the Board such that there are no outstanding issues in the current appeal stream that remain to be considered.  The Board recognizes that it is possible for there to be multiple TDIU adjudications in a case and that TDIU may be predicated on different underlying disabilities and/or time periods.  However, in this case, the TDIU that the representative claims should be raised as part of the underlying claim for an increased rating for sleep apnea is the very same TDIU that was part of the January 2025 Board decision that remanded service connection for sleep apnea-which later gave rise to the present appeal for a higher initial rating for sleep apnea-and TDIU, which was denied by the Board in September 2025.  Accordingly, the September 2025 Board decision is a final decision as to this particular TDIU.  38 C.F.R. § 20.1100.  

Based on the above, the Board finds that the matter seeking entitlement to TDIU has been adjudicated by the Board in the September 2025 decision, and the Board is barred by res judicata from readjudicating this issue. As the present appeal no longer presents any issue for the Board to adjudicate, the Board will dismiss the appeal.

 

M. Schlickenmaier

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Adams, 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. 


. § 20.1303.