Entitlement to an initial evaluation in excess of 30 percent disabling for service-connected asthma and obstructive sleep apnea is remanded.

Citation Nr: A26069936 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 260302-648427 DATE: July 30, 2026 REMANDED Entitlement to an initial evaluation in excess of 30 percent disabling for service-connected asthma and obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran had active service from October 2000 to October 2021. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2025 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). Although the Veteran initially requested Higher-Level Review when submitting the November 2024 VA Form 20-0996, Decision Review Request: Higher-Level Review, the Higher-Level Reviewer determined that there had been a duty to assist error and transferred the claim to the Supplemental Claim decision review option for additional development. The Supplemental Claim was then issued in March 2025. In the March 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2025 AOJ Supplemental Claim decision on appeal. 38 C.F.R. § 20.301. If evidence was submitted after the AOJ issued the supplemental claim decision on appeal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. 1. Entitlement to an initial evaluation in excess of 30 percent disabling for service-connected asthma and obstructive sleep apnea is remanded. By way of history, the Veteran was granted service connection for asthma in a September 2023 rating decision. The Veteran was granted a 30 percent disability evaluation effective June 21, 2023. In an August 2024 rating decision, the Veteran's disability rating was amended to encompass both sleep apnea and asthma, and the 30 percent disability rating was maintained, under Diagnostic Code (DC) 6847-6602. The Veteran's asthma is rated under 38 C.F.R. § 4.97, DC 6602, which applies to asthma, bronchial. A 30 percent disability rating is warranted 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 disability rating is warranted for 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; and a total disability rating (100 percent) is warranted for 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. The Veteran was afforded a VA examination in December 2024. The VA examiner indicated that the Veteran's disability has stayed the same. Pulmonary function testing (PFT) was conducted, with pre-bronchodilator FVC at 111 percent predicted, FEV-1 at 105 percent predicted, and FEV-1/FVC at 75 percent. The VA examiner indicated the most accurate test result was the FEV-1 percent predicted. The examiner indicated that post-bronchodilator testing was completed as pre-bronchodilator results were normal. The Veteran was previously provided with a VA examination in August 2023. The VA examiner indicated that the Veteran's disability had worsened. The PFT results demonstrated pre-bronchodilator FVC at 82 percent predicted; FEV-1 at 80 percent predicted; FEV-1/FVC at 79 percent predicted; and DLCO 98 percent predicted. Post-bronchodilator testing was also conducted, showing FVC at 94 percent predicted; FEV-1 at 95 percent predicted; and FEV-1/FVC at 80 percent predicted. The examiner noted the most accurate representation of the Veteran's level of disability was the FVC percent predicted. A third VA examination was conducted in April 2023. The PFT results demonstrated pre-bronchodilator FVC at 54 percent predicted; FEV-1 at 48 percent predicted; FEV-1/FVC at 69.72 percent predicted. Post-bronchodilator testing was also conducted, showing FVC at 55 percent predicted; FEV-1 at 65 percent predicted; and FEV-1/FVC at 77.50 percent predicted. The examiner noted the most accurate representation of the Veteran's level of disability was the FVC-1 percent predicted. The Board finds the three instances of PFT testing to be inconsistent. The most severe results presented in April 2023, with the subsequent VA examiner finding that the Veteran's disability had worsened since the previous examination, however, testing results show a less-severe disability. The most recent VA examiner found that the Veteran's disability had stayed the same, but provided PFT testing results that demonstrate an improvement from the August 2023 testing results. The Board notes that the August 2023 examiner did not address the April 2023 results, and the December 2024 examiner did not address the August 2023 or April 2023 testing results. The Board finds that the examinations and testing to be internally inconsistent, and that the August 2023 and December 2024 examiners ignored favorable evidence presented by the April 2023 examiner. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). A remand is therefore warranted to ensure that the duty to assist is satisfied with respect to the need to provide an adequate and complete VA examination. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matters are REMANDED for the following action: Schedule an examination with an appropriate examiner to identify the nature of the Veteran's symptoms of asthma and sleep apnea. The claims folder should be made available and reviewed by the examiner. The examiner is additionally asked to specifically address the discrepancies in the previously obtained PFT results in conjunction with the examination. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Morgan, Sarah W. 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.