Board Erred When it Failed to Compare Veteran’s Asthma Symptoms to Rating Schedule

CCK Law: Our Vital Role in Veterans Law

Summary of the Case

The Veteran honorably served in the United States Army from 1983 to 1997. During service he was exposed to environmental hazards in Southwest Asia. Among other commendations, he earned a Kuwait Liberation Medal.  While in service, he was diagnosed with asthma and assigned to the temporary disability retired list.  VA awarded service connection for asthma rated 10% after he separated from service.  A later decision increased his rating to 30%.

The Veteran worked jobs in construction and drove a street sweeper following service.  These jobs exposed him to environmental triggers that worsened his asthma symptoms.  He treated his asthma with medication and a nebulizer, however this treatment did little to resolve his symptoms. Therefore, he also  received injections twice a week from his doctor.  This required him to take a lot of time off work, which limited his ability to advance professionally.

VA denies extraschedular referral for Veteran’s Asthma symptoms

In 2009, the Board granted a 60% rating for the Veteran’s asthma for the period prior to October 9, 2009.  They also awarded a 100% rating for the time period after that date.  The Veteran subsequently appealed that decision to the Court of Appeals for Veterans Claims.  The Court ultimately remanded the claim pursuant to a joint motion for remand.  Both parties agreed that the Board  failed to discuss whether extraschedular referral was appropriate.  Specifically, they failed to take into consideration the fact that the appellant suffered from asthma symptoms not addressed in the diagnostic code (including shortness of breath, cough, postnasal drip, rhinitis, wheezing, and hoarseness of his voice).

The Board issued another decision in November 2016, in which it again denied a higher rating for asthma prior to 2009.  CCK appealed this decision once again to the Court.

CCK appeals to Court of Appeals for Veterans Claims

In the decision on appeal, the Board denied a rating in excess of 60% prior to 2009 for the Veteran’s asthma.  The decision acknowledged that the Veteran experienced several symptoms that his 60% rating did not specifically address, including postnasal drip, coughing, shortness of breath, wheezing, and hoarseness of voice.  However, it concluded that the rating criteria must generally be assumed to be accurate.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred when it failed to compare the Veteran’s specific symptoms to the rating schedule.  The Court found the Board’s analysis “grossly inadequate to facilitate judicial review” as they provided no explanation for their conclusion.  In addition,  the Veteran’s symptoms were found to be implicitly contemplated within the rating criteria.  The Court thus vacated the Board’s decision and remanded the Veteran’s claim for further adjudication.