Urban: RATING CO-EXISTING RESPIRATORY CONDITIONS, 38 C.F.R. § 4.96
/Urban v. Shulkin, 29 Vet.App. 82 (Sept. 18, 2017)
HELD: When assigning a single disability rating for co-existing respiratory conditions, 38 C.F.R. § 4.96(a) allows VA to (1) determine which disability is predominant and then (2) evaluate the overall severity of the multiple conditions under the diagnostic criteria for the predominant disability. The fact that the non-predominant disability may cause symptoms that are not listed in the diagnostic criteria for the predominant disability does not automatically warrant a higher rating.
SUMMARY: Mr. Urban is service connected for obstructive sleep apnea (OSA) and asthma, evaluated as 60% disabling under the Diagnostic Code (DC) for asthma since that DC results in a higher rating than the DC for OSA. He appealed for a higher rating, arguing that although he was entitled to a 60% rating under the DC for asthma, he should be rated 100% because his OSA required the use of a CPAP machine and caused him to be tired during the day – two factors that are not part of the 60% rating.
The Board denied the higher rating based on 38 C.F.R. § 4.96(a), which precludes separate evaluations for certain listed respiratory conditions, including asthma and OSA.
On appeal to the Veterans Court, Mr. Urban argued that the specific criteria for the higher evaluation listed in the predominant disability’s DC need not be met – and that symptoms in the non-predominant disability can warrant a higher rating. The Secretary argued that a higher rating is warranted only when the criteria listed in the DC for the predominant disability are met. Mr. Urban also argued that the Board erred when it denied referral for extraschedular consideration under 38 C.F.R. § 3.321 “because the availability of a higher scheduler evaluation does not prevent extraschedular referral.” The Secretary conceded that the Board may have erred in suggesting that referral was not warranted because of the availability of a higher rating, but argued that the error was harmless because the Board’s overall extraschedular assessment was adequate.
The Court agreed with the Secretary. Under § 4.96(a), certain listed respiratory conditions cannot be combined, and are instead rated under the DC “which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.” The Court noted that the language at issue in this appeal is the meaning of “where the severity of the overall disability warrants such elevation.” The Secretary argued that after determining which disability is predominant, VA then must apply the DC for that disability, “considering all of the signs and symptoms attributable to either one or both of those disabilities.” Mr. Urban agreed that the phrase requires VA to look at the symptoms of both disabilities and evaluated them under DC 6602, but argued that “his symptoms need not match the criteria for a higher evaluation listed in DC 6602 to obtain a higher evaluation under § 4.96(a) and that OSA symptoms not listed in DC 6602 may nevertheless form the basis of a higher evaluation under that DC.”
The Court found that the language in § 4.96(a) was ambiguous and thus deferred to the Secretary’s “reasonable” interpretation of the phrase “with elevation to the next higher evaluation” to refer to the “next higher evaluation level of the predominant disability DC.” To attain the higher rating, “the criteria listed in that evaluation level are key to assessing the severity of the overall disability from both respiratory conditions.” The Court found that this interpretation allows VA “to assess the overall symptoms of the coexisting respiratory conditions against the criteria listed in the predominant disability’s DC.” The Court found the interpretation to be consistent with the plain language of the regulation, as well as with its purpose within VA’s regulatory scheme (“to avoid duplicate compensation payments for the same symptoms,” i.e., “pyramiding”).
