Timothy J. Urban v. David J. Shulkin

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 15-3744

TIMOTHY J. URBAN, APPELLANT,

V.

DAVID J. SHULKIN, M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veteran's Appeals

(Argued February 7, 2017 Decided September 18, 2017)

Jenna E. Zellmer, with whom Emma L. Peterson and Zachary M. Stolz, were on the brief,

all of Providence, Rhode Island, for the appellant.

Mark D. Vichich, Appellate Attorney, with whom Leigh A. Bradley General Counsel; Mary

Anne Flynn, Chief Counsel; and Richard A. Daley, Deputy Chief Counsel, all of Washington, D.C.,

were on the brief, for the appellee.

Before DAVIS, Chief Judge, and PIETSCH and BARTLEY, Judges.

BARTLEY, Judge: Veteran Timothy J. Urban appeals through counsel a September 15,

2015, Board of Veterans' Appeals (Board) decision that denied entitlement to a disability

evaluation higher than 60% for obstructive sleep apnea (OSA) with asthma. Record (R.) at 2-14.

This matter was referred to a panel of the Court, with oral argument, to determine whether VA,

when assigning a single disability evaluation for coexisting service-connected respiratory

conditions under 38 C.F.R. § 4.96(a), is to evaluate severity on the basis of the criteria listed in the

diagnostic code (DC) of the predominant respiratory disability alone. For the reasons that follow,

we hold that the language of § 4.96(a) is ambiguous as to this issue and will therefore defer to the

Secretary's interpretation, that VA is to evaluate coexisting service-connected respiratory

conditions covered by § 4.96(a) under the criteria enumerated in the predominant disability's DC.

Accordingly, we will affirm the September 2015 Board decision.

I. FACTS

Mr. Urban served on active duty in the U.S. Coast Guard from August 1988 to August

2007. R. at 1186. While in service, he filed an April 2007 claim for service connection for, inter

alia, OSA and asthma. R. at 1224.

In February 2008, a VA regional office (RO) granted service connection for OSA with

asthma and assigned an evaluation of 50% under 38 C.F.R. § 4.97, DC 6847 (Sleep Apnea

Syndromes). R. at 1175. The veteran sought reconsideration of that decision. R. at 1154-57.

In May 2008, the veteran underwent a VA respiratory examination. The examiner noted

that the veteran has dyspnea,1 asthma, and OSA. R. at 1131. The examiner explained that, without

medication, the veteran experiences shortness of breath, uses Albuterol inhalers "almost

constantly" for asthma, and requires a continuous positive airway pressure (CPAP) machine for

OSA. R. at 1131-33.

A September 2008 RO decision continued the assigned 50% evaluation. R. at 1122. The

veteran filed a timely Notice of Disagreement as to that decision and ultimately appealed to the

Board. R. at 1118; 1288.

In March 2009, the veteran submitted a statement requesting that his asthma and OSA be

evaluated separately. R. at 1108-10. In August 2009, he submitted a letter from a private physician

who explained that he treated the veteran's moderate to severe asthma with Symbicort, a

combination of steroid and long-lasting beta-agonist. R. at 1310.

In September 2009, the RO issued a Statement of the Case (SOC) continuing the assigned

50% evaluation. R. at 1295-1308. A June 2010 Supplemental SOC awarded the veteran a 60%

evaluation for service-connected OSA with asthma under § 4.97, DC 6602 (Asthma, bronchial)

because he required continuous use of a CPAP machine and inhalers, to include steroid inhalers.

R. at 1263-67. The RO explained that under § 4.96(a), a single evaluation is assigned under the

predominant disability DC with elevation to the next higher evaluation where warranted based on

the severity of the overall disability. R. at 1266. The RO assigned a 60% evaluation under DC

6602 for asthma because a lower 50% evaluation would be warranted under DC 6847 for OSA.

Id. The RO stated that the requirements for an evaluation higher than 60% were not met. Id.

1

Dyspnea is defined as "breathlessness or shortness of breath; difficult or labored respiration." DORLAND'S

ILLUSTRATED MEDICAL DICTIONARY 582 (32d ed. 2012).

2

At a December 2011 Board hearing, the veteran testified that, since he started taking

Symbicort, his asthma was better controlled but he still experienced flare-ups that required

prednisone use a few times a year. R. at 1003-04. He stated that he attempted to undergo pulmonary

function tests (PFTs) but because he was "wheezing and hacking and coughing and . . . couldn't

get through a test without coughing," it was invalidated. R. at 1004.

In March 2012, the Board remanded the veteran's claim for further development. R. at 993.

Later that month, the veteran underwent respiratory and sleep apnea examinations. R. at 968

(Respiratory–Asthma); 976 (Sleep Apnea). Regarding asthma, the examiner explained that the

veteran was currently being treated with Symbicort twice daily and Albuterol less frequently since

he began use of Symbicort and reported that the condition required intermittent use of oral or

parenteral corticosteroids of four or more courses in the last year and daily use of inhaled

medications. R. at 969. She also noted that Mr. Urban had no asthma attacks with episodes of

respiratory failure in the past 12 months, but that three to four times a year he had difficulty

breathing to the point he could not speak and required the use of parenteral steroids. The veteran

was noted to visit a physician less than once a month for exacerbations. R. at 970. A PFT was

performed measuring forced expiratory volume in one second to forced vital capacity (FEV-

1/FVC) and the results were 73% pre-bronchodilator and 78% post-bronchodilator. R. at 975. The

examiner opined that the veteran's asthma affects his quality of life and that he needs to use inhalers

for activities such as exercise, mowing the lawn, and walking more than a 1/2 mile. R. at 976.

Regarding OSA, the examiner noted that the veteran requires continuous use of a CPAP machine

but still has occasional episodes of gasping for air. R. at 977. She opined that the veteran's OSA

impacts his ability to work because it causes sleepiness. R. at 978. In May 2014, the veteran

underwent a VA sleep apnea examination during which the examiner noted that the veteran

required continuous use of a CPAP machine. R. at 926.

In July 2014, the Board denied entitlement to an evaluation higher than 60% for service-

connected asthma and OSA. R. at 894-911. Mr. Urban appealed that decision to the Court and, in

May 2015, the Court granted a joint motion for partial remand (JMPR) in which the parties

stipulated that the Board failed to provide adequate reasons or bases for its determination that the

veteran's overall disability picture does not warrant a higher evaluation. R. at 89.

3

In July 2015, Mr. Urban, through current counsel, submitted a letter to the Board arguing

that § 4.96 provides that asthma and OSA must be evaluated using the predominant disability

DC—DC 6602 for asthma—but that, because his OSA requires the use of a CPAP machine and

resulted in sleepiness while working, consideration of those factors should result in his evaluation

under DC 6602 being increased to 100%. R. at 30-31.

In September 2015, the Board issued the decision currently on appeal, denying entitlement

to an evaluation higher than 60% for coexisting service-connected respiratory disorders of asthma

and OSA. R. at 2-14. The Board noted that if rated separately, OSA symptoms would warrant a 50%

evaluation under DC 6847 and asthma symptoms would warrant a 60% evaluation under DC 6602.

Thus, asthma was considered the predominant disability for § 4.96(a) purposes because it provided the

veteran a higher evaluation. The Board also noted that the March 2012 examiner determined that

asthma was the predominant respiratory disability. R. at 11-12. The Board stated that, under § 4.96(a),

it could not provide separate evaluations for OSA and asthma or combine the evaluations, but rather

that a single evaluation would be assigned under the predominant disability DC based on the severity

of the overall disability. R. at 11. The Board then considered Mr. Urban's asthma and OSA symptoms

and treatment, including use of daily inhalational therapy and intermittent courses of systemic

corticosteroids for control of asthma and use of a CPAP machine for control of OSA, and concluded

that, when considering his respiratory symptoms as a whole, the severity of his overall respiratory

disability did not warrant an elevation of the current 60% under DC 6602 to the next higher evaluation

of 100% under DC 6602. R. at 12. This appeal followed.

II. ANALYSIS

A. Arguments

Mr. Urban argues that the Board misapplied § 4.96(a) and provided inadequate reasons or bases

for its determination that referral for extraschedular consideration was not warranted. Appellant's Brief

(Br.) at 9.2

2

In his initial brief, the veteran first argued that the Board violated Colvin v. Derwinski, 1 Vet.App. 171

(1991), when it determined that Symbicort is not systemic and its usage cannot be considered under § 4.97, DC 6602

(asthma). In his reply brief, the veteran expressly withdrew that argument and confirmed withdrawal of that argument

during oral argument. See Reply Br. at 1; Oral Argument at 2:03-2:12, Urban v. Shulkin, U.S. Vet.App. 15-3744 (oral

argument held February 7, 2017), http://www.uscourts.cavc.gov/ oral_arguments_audio.php [hereinafter "Oral

Argument"]. Therefore, the Court will not consider that issue further.

4

The veteran and the Secretary disagree as to how to arrive at a single evaluation for coexisting

respiratory conditions under § 4.96(a). The veteran argues that the specific criteria for a higher

evaluation listed in the predominant disability DC need not be met. Oral Argument at 9:02-10:35;

14:39-15:43. The Secretary responds that the plain language of § 4.96(a) provides that a higher

evaluation will be warranted only where the specific criteria and symptoms listed in the

predominant disability DC are met. Secretary's Br. at 17-18. Alternatively, the Secretary argues that,

if the Court finds the relevant part of § 4.96(a) ambiguous, the Court should defer to his reasonable

interpretation, including as currently set forth in the VA Adjudication Procedures Manual M21-1, pt.

III, subpt.iv, ch.4, section D(1)(h), because that interpretation reflects the agency's considered view on

the matter. Id. at 18-22. At oral argument, the Secretary emphasized that VA has consistently applied

§ 4.96(a) in this manner for many years. Oral Argument at 38:12-40:30.

Regarding referral for extraschedular consideration, Mr. Urban argues that the Board erred

when it relied on the fact that he did not meet the criteria for a higher evaluation under DC 6602 to

deny extraschedular referral because the availability of a higher schedular evaluation does not preclude

extraschedular referral. Additionally, he argues that in its extraschedular analysis the Board failed to

account for his use of Symbicort for asthma treatment, as it is not listed in DC 6602. At oral argument,

Mr. Urban explained that he was only concerned with extraschedular referral for asthma, not for OSA.

Oral argument at 30:00-32:00. In response, the Secretary concedes that, although the Board may have

erred in indicating that an extraschedular evaluation was not warranted because a higher schedular

evaluation was available, any such error was harmless because the Board overall performed an

adequate extraschedular referral assessment. Secretary's Br. at 25-26.

B. 38 C.F.R. § 4.96(a)

1. Interpretation

The initial question before the Court involves the interpretation of certain language

contained in § 4.96(a); this question necessitates examination of the regulation's text. See Good

Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, (1993) ("The starting point in interpreting a statute

[or regulation] is its language."); Petitti v. McDonald, 27 Vet.App. 415, 422 (2015) ("Regulatory

interpretation begins with the language of the regulation, the plain meaning of which is derived

from its text and its structure."). If the plain meaning of § 4.96(a) is clear from its language, that

meaning controls and that is the end of the matter. Tropf v. Nicholson, 20 Vet.App. 317, 320

(2006). If, however, the language is ambiguous, the Court must defer to the agency's interpretation

5

of its regulation unless that interpretation is inconsistent with the language of the regulation or

plainly erroneous or does not represent the agency's fair and considered view on the matter. See

Auer v. Robbins, 519 U.S. 452, 461-62, (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S.

410, 414, (1945); Smith v. Nicholson, 451 F.3d 1344, 1349 (Fed. Cir. 2006); Petitti, 27 Vet.App. at

423. When assessing the meaning of a regulation, words should not be read in isolation but rather

read in the context of the regulatory structure and scheme. King v. Shinseki, 26 Vet.App. 484, 488

(2014).

Section 4.96(a) provides that

[r]atings under [DCs] 6600 through 6817 and 6822 through 6847 will not be

combined with each other. . . . A single rating will be assigned 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.3

The parties do not dispute that the first sentence of § 4.96(a) means that the assignment of

separate evaluations for certain respiratory conditions, including asthma and OSA, is prohibited.

Additionally, the parties agree that the third sentence is applied in two steps: (1) "[a] single rating

will be assigned under the [DC] which reflects the predominant disability," (2) "with elevation to

the next higher evaluation where the severity of the overall disability warrants such elevation."

38 C.F.R. § 4.96(a); see Appellant's Br. at 9; Secretary's Br. at 14. But the parties disagree as to

the meaning of the phrase "where the severity of the overall disability warrants such elevation."

38 C.F.R. § 4.96(a).

The Secretary contends that, after determining which disability is predominant, VA is then

required to apply the predominant disability DC, "considering all of the signs and symptoms

attributable to either one or both of those disabilities." Secretary's Br. at 17. The Secretary clarifies

that "all of the claimant's symptoms attributed to the coexisting respiratory conditions being rated

will be considered in assigning the rating, but that the criteria under the applicable [predominant

disability] DC . . . will determine the appropriate rating to be assigned." Secretary's Br. at 20. Mr.

Urban contends that the phrase under consideration requires VA to look at the symptoms of both

disabilities and evaluate them under DC 6602, but essentially argues that his symptoms need not

3

The second sentence of § 4.96(a) concerns DCs that do not apply here and the Court has omitted it from the

quote.

6

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. Reply Br. at 3-4. He posits that it would be illogical to require

that the veteran's OSA symptoms meet the rating criteria for a completely different respiratory

disability, i.e., asthma, to obtain a higher evaluation for the coexisting respiratory disorders. Id.

The Court concludes that both parties present interpretations consistent with the language

of the regulation. The section under consideration does not clarify whether symptoms of the non-

predominant disability but not referenced in the predominant disability DC might somehow suffice

to elevate the disability evaluation to the next higher level. Given that the relevant language is

susceptible to differing interpretations in this regard, and because the plain language does not

explicitly confirm how a veteran may obtain the next higher evaluation in cases of coexisting

service-connected respiratory disabilities to which § 4.96(a) applies, the Court concludes that the

phrase "with elevation to the next higher evaluation" in the third sentence of § 4.96(a) is

ambiguous. See Tropf, 20 Vet.App. at 321 n.1 (stating that a regulation is ambiguous where "the

application of the ordinary meaning of words and rules of construction to the plain language of the

regulation fails to answer the question at issue"); see also Smith, 451 F.3d at 1350 (holding that a

regulation is ambiguous where the language "still leaves the pertinent inquiry unresolved").

Having encountered ambiguity in § 4.96(a), the Court will address the reasonableness of

the Secretary's interpretation and determine whether deference to that interpretation is warranted.

See Auer, 519 U.S. at 461-62; Mason v. Shinseki, 26 Vet.App. 1, 6 (2012). "[C]ourts should defer

to an agency's interpretation of its own ambiguous regulation so long as that interpretation is not

inconsistent with the language of the regulation or otherwise plainly erroneous and represents the

agency's considered view on the matter." Mulder v. Gibson, 27 Vet.App. 10, 16 (2014) (citing

Smith, 451 F.3d at 1349).

The plain language of the phrase "with elevation to the next higher evaluation" is

reasonably interpreted as referring to the next higher evaluation level of the predominant disability

DC and is also reasonably interpreted as meaning that, to attain such elevation, the criteria listed

in that evaluation level are key to assessing the severity of the overall disability from both

respiratory conditions. Thus, the Court concludes that the Secretary's interpretation of the phrase

allows VA, having determined the predominant respiratory disability, to assess the overall

7

symptoms of the coexisting respiratory conditions against the criteria listed in the predominant

disability's DC. This interpretation is reasonable and not plainly erroneous. See Martin v.

Occupational Safety and Health Review Commission, 499 U.S. 144, 150-51 (1991) (holding that

an agency interpretation is reasonable "so long as the interpretation 'sensibly conforms to the

purpose and the wording of the regulations'" (quoting Ehlert v. United States, 402 U.S. 99, 105

(1971))).

In addition to being consistent with the regulation's language, the Secretary's interpretation

is consistent with the purpose of the regulation and with VA's regulatory scheme. See id. at 150-

51. The parties do not dispute that under § 4.96(a) the Secretary provides a single evaluation for

certain coexisting respiratory conditions to avoid duplicate compensation payments for the same

symptoms or for conditions that manifest in the same way, a practice known as pyramiding. Oral

Argument at 21:44-21:55; see 38 C.F.R. § 4.14 (2017) ("the evaluation of the same manifestation

under different diagnoses [is] to be avoided"). In Amberman v. Shinseki, the U.S. Court of Appeals

for the Federal Circuit acknowledged that "VA regulations caution against making multiple awards

for the same physical impairment simply because that impairment could be labeled in different

ways." 570 F.3d 1377, 1380 (Fed. Cir. 2009); see also Esteban v. Brown, 6 Vet.App. 259, 262

(1994) (explaining that when considering whether separate evaluations are warranted, "[t]he

critical element is that none of the symptomatology for any one of these . . . conditions is

duplicative of or overlapping with the symptomatology of the other . . . conditions."). This Court

also has recognized that "the rating schedule may not be employed as a vehicle for compensating

a claimant twice (or more) for the same symptom[s]" because "such a result would overcompensate

the claimant for the actual impairment" suffered. Brady v. Brown, 4 Vet.App. 203, 206 (1993).

Since promulgation of § 4.96 in 1964, the language at issue has not changed. Nineteen

years prior to the Board decision on appeal, VA modified the respiratory condition DCs to reflect

medical advances. See 61 Fed. Reg. 46,720 (Sept. 5, 1996). At that time, the agency emphasized

that there was no need to overtly specify that § 4.96(a) prohibits pyramiding because the

regulation's language, that respiratory conditions evaluated under specified DCs will not be

combined with each other, was sufficient to alert VA rating boards to problems of pyramiding

when evaluating respiratory conditions. Id. at 46,727. A VA Compensation Service document from

March 2014 also shows that VA's application of § 4.96(a) concerned anti-pyramiding efforts. VA

8

Compensation and Pension Service Question and Answer Committee, Question and Answer

(March 5, 2014).

Given 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

DC makes sense. Allowing criteria from other respiratory condition DCs to be considered when

assigning an evaluation would seem to conflict with the § 4.96(a) language that prohibits

combining evaluations under § 4.25. Thus, the Court finds that the Secretary's interpretation is

consistent with the language and purpose of the regulation and with the regulatory scheme. See

Martin, 449 U.S. at 150-51.

As to whether the Secretary's interpretation is his fair and considered judgment on the

matter, Mr. Urban has not presented evidence or argument reflecting any application of § 4.96(a)

by the Secretary that is inconsistent with this interpretation nor has he argued that this is not the

Secretary's fair and considered view, see Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc)

(holding that the appellant has the burden of demonstrating error), aff'd per curiam, 232 F.3d 908

(Fed. Cir. 2000) (table), and the Court likewise has found nothing to that effect. The Court accepts

the Secretary's argument that his M21-1 provision as to implementation of § 4.96(a) illustrates his

fair and considered view on the matter. In that provision, VA set forth an approach for applying

§ 4.96(a) that appears consistent with the Secretary's prior pronouncements as to application of

§ 4.96(a) and with his position in this case. Under his interpretation, all symptoms of the coexisting

respiratory conditions are accounted for and the anti-pyramiding quotient remains intact. The

Secretary acknowledges that there may be very few instances where symptoms of a non-

predominant disability would result in a higher disability rating under the criteria for the

predominant disability. However, the opportunity to receive a higher disability rating under

§ 4.96(a) still balances the goals of adequately compensating veterans and avoiding improper

pyramiding. After review of relevant materials and documents provided by the parties, the Court

concludes that his posited interpretation is his fair and considered view of the matter.

Having determined that the Secretary's interpretation is consistent with the language of the

regulation and not plainly erroneous and represents his fair and considered view of the matter, the

Court will defer to the Secretary's interpretation.

9

Mr. Urban does not contest that § 4.96(a), on its face, prohibits asthma and OSA from

receiving separate evaluations that are then combined. But the thrust of his argument that the

Board's application of § 4.96 is flawed seems to be based on a complaint that symptoms and

treatment for OSA are so different from symptoms and treatment for asthma that to evaluate his

OSA under DC 6602, the asthma DC, would be irrational. See Reply Br. at 4 ("It is illogical to

require that the [v]eteran's sleep apnea symptoms meet the rating criteria for a completely different

respiratory disability . . . . This is particularly true here: sleep apnea is not measured by the FEV

tests that guide the rating for asthma and is not treated with the same therapies as asthma."); Reply

Br. at 7 (Mr. Urban alleges that it is problematic that he is service connected for two distinct

respiratory disabilities but "receives the same compensation as a veteran who is service[

]connected for only asthma at 60 percent."). Essentially, Mr. Urban believes that evaluating OSA

and asthma separately would not constitute pyramiding because they are such distinct conditions—

and underlying his argument seems to be genuine disagreement with VA's decision to construct

the rating schedule to prevent OSA from receiving its own separate evaluation in this instance.4

However, "[t]he Court may not review the schedule of ratings for disabilities adopted under

section 1155 of this title or any action of the Secretary in adopting or revising that schedule."

38 U.S.C. § 7252(b). "The Secretary's discretion over the [rating] schedule, including procedures

followed and content selected, is insulated from judicial review with one recognized exception

limited to constitutional challenges." Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004).

Section 4.96(a) clearly prohibits conventional evaluation practices from being applied in this case.

38 C.F.R. § 4.96(a) ("Ratings under DC 6600 through 6817 and 6822 through 6847 will not be

combined with each other"). Despite Mr. Urban's discontent with the effect of § 4.96(a) in his case,

the Court has no authority to address whether OSA and asthma are so dissimilar that § 4.96(a)

unfairly operates to his disadvantage. See id.

Although the Court has held that the Secretary's interpretation is permissible and defers to

it, the Court will nevertheless address the veteran's remaining arguments. Despite accepting that

the intent of § 4.96(a) is to avoid pyramiding of respiratory condition symptoms, Mr. Urban offers

4

When a veteran's symptoms are not accounted for in schedular criteria, VA regulations provide that an

extraschedular evaluation may be warranted provided other requirements are met. See 38 C.F.R. § 3.321(b) (2017).

10

an alternative view of that regulation—that its plain language, like § 3.321(b)(1), the

extraschedular regulation, was intended to "account[ ] for situations where a veteran's combined

multiple service-connected disabilities–in this case multiple respiratory disabilities–result in a

greater disability picture than the sum of their parts." Reply Br. at 2-3. As support, the veteran cites

Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), which interpreted § 3.321(b)(1) as

requiring VA to assess the collective impact of multiple service-connected disabilities when

performing extraschedular evaluations. Appellant's Br. at 3.

The Court rejects the veteran's argument; although it appears that veterans would receive

a higher evaluation if their respiratory conditions are elevated under § 4.96(a) rather than being

combined under § 4.25, that result would only occur after VA determined that "the severity of the

overall disability warrants such elevation." The meaning of that phrase is the focus of this analysis.

The mere fact that a higher evaluation would result if elevation were determined to be the

appropriate course cannot resolve the question of when elevation is appropriate. Therefore, the

Court does not accept his view of § 4.96(a).

Additionally, Mr. Urban does not support his argument that the Secretary's interpretation

would erroneously require that each of the criteria listed in the next higher evaluation level be met

for a veteran to obtain a higher evaluation. Reply Br. at 6-7. The Secretary did not argue in his

brief or at oral argument that § 4.96(a) imposes a requirement that all criteria and symptoms listed

in the higher evaluation level would need to be met in every case nor did he argue that 38 C.F.R.

§ 4.7 would not apply here. See 38 C.F.R. § 4.7 (2017) ("Where 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."). Therefore, the Court finds this

argument unpersuasive.

2. Application

Every Board decision must include a written statement of reasons or bases for its findings

and conclusions on all material issues of fact and law; this statement must be adequate to enable

the claimant to understand the precise basis for the Board decision and to facilitate informed review

by this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). The Board

must analyze the credibility and probative value of evidence, account for the persuasiveness of

evidence, and provide reasons for rejecting material evidence favorable to the claimant. Caluza v.

11

Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Remand

is appropriate when the Board fails to provide an adequate statement of reasons or bases for its

determinations. Tucker v. West, 11 Vet.App. 369, 374 (1998).

Mr. Urban's diagnosed respiratory conditions are evaluated under DC 6602 (asthma) and

DC 6847 (OSA). DC 6602 provides a 60% evaluation for service-connected asthma for "FEV-1

of 40 to 55[%] predicted, or; an FEV-1/FVC of 40 to 55[%], 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." 38 C.F.R. § 4.97, DC 6602. A 100% evaluation is

warranted for "FEV-1 less than 40[%] predicted, or; an FEV-1/FVC less than 40[%] 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. Id. Under DC 6847, a

50% evaluation is warranted for service-connected OSA when it "[r]equires use of [a] breathing

assistance device such as [a] continuous airway pressure (CPAP) machine." 38 C.F.R. § 4.97, DC

6847. A 100% evaluation is warranted when OSA causes "[c]hronic respiratory failure with carbon

dioxide retention or cor pulmonale, or; requires tracheostomy." Id.

In the decision on appeal, the Board noted that, if asthma and OSA were evaluated separately,

OSA symptoms would warrant a 50% evaluation under DC 6847 and asthma symptoms would warrant

a 60% evaluation under DC 6602. Thus, asthma was considered the predominant disability for § 4.96(a)

purposes because it provided the veteran a higher evaluation. In reviewing the Board decision and its

compliance with § 4.96(a), the Court first notes that it is undisputed that asthma is the veteran's

predominant disability and the Court will therefore not address that issue further.

Next, the Board indicated that under § 4.96(a) it could not provide separate evaluations for

OSA and asthma, or combine those evaluations, but rather that a single evaluation would be assigned

under the predominant disability DC based on the severity of the overall disability. R. at 11. The Board

considered Mr. Urban's asthma and OSA symptoms and treatment, including use of daily inhalational

therapy and intermittent courses of systemic corticosteroids for control of asthma and use of a CPAP

machine for control of OSA. R. at 12. The Board concluded that, when considering his respiratory

symptoms "as a whole," the "severity of his overall respiratory disability" did not warrant elevation of

the current 60% under DC 6602 to the next higher evaluation of 100% under DC 6602. Id.

The Board applied the language at issue in this case, assigning a single evaluation under

the DC that reflects the predominant disability with elevation to the next higher evaluation where

12

the severity of the overall disability warrants such elevation. The Board reiterated that it "must

evaluate whether the single rating assigned for these disabilities (currently 60[%] under [DC] 6602,

with asthma as the predominant disability) is appropriate, or whether the severity of the overall

disability warrants an elevation of the rating to the next higher evaluation." R. at 11. The Board

then looked to the criteria listed in the next higher evaluation under DC 6602 and determined that

"when considering his respiratory symptoms as a whole, . . . the severity of his overall disability

does not warrant an elevation of the current 60[%] rating to the next higher evaluation." R. at 12.

This analysis is adequate under § 4.96(a).

The Board also considered whether Mr. Urban's OSA symptoms would meet the criteria in

excess of 50% under DC 6847, even though § 4.96(a) did not require the Board to conduct this

analysis because OSA is not the veteran's predominant respiratory disability. However, such

additional analysis is harmless error. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due

account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (explaining

that "the burden of showing that an error is harmful normally falls upon the party attacking the

agency's determination"). The Court recognizes that the Board did not explicitly use some of the

terms referenced in the M21-1 provision; however, the Board is not bound by the VA manual

provision using that terminology and appears to have nevertheless properly applied § 4.96(a) in a

manner sufficient to satisfy its requirements. See 38 C.F.R. § 19.5 (2017) ("The Board is not bound

by Department manuals, circulars, or similar administrative issues."). Accordingly, the Court

discerns no error in the Board's determination in that regard. See Gilbert, 1 Vet.App. at 57.

C. Extraschedular Evaluation

When a claimant or the record raises the issue of extraschedular evaluation, the Board must

determine whether to refer the case for extraschedular evaluation. Thun v. Peake, 22 Vet.App. 111,

115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Consideration of an

extraschedular evaluation involves three steps or elements. Id. First, the RO or Board must

determine whether the schedular evaluation adequately contemplates the veteran's disability

picture. Id. "[I]f the [schedular] criteria reasonably describe the claimant's disability level and

symptom[s], then the claimant's disability picture is contemplated by the rating schedule, the

assigned schedular evaluation is, therefore, adequate, and no referral is required." Id. "[I]f the

schedular evaluation does not contemplate the claimant's level of disability and symptom[s] and is

13

found inadequate," then the second inquiry is "whether the claimant's exceptional disability picture

exhibits other related factors," id. at 116, such as "marked interference with employment or

frequent periods of hospitalization as to render impractical the application of the regular schedular

standards," 38 C.F.R. § 3.321(b)(1) (2017). If the RO or Board determines that the veteran's

disability picture meets these criteria, the third step is to refer the case to the Under Secretary for

Benefits or the Compensation Service Director to determine whether an extraschedular evaluation

is warranted, "to accord justice." Thun, 22 Vet.App. at 116; 38 C.F.R. § 3.321(b)(1).

Here, the Board determined that referral for extraschedular consideration was not

warranted because the first Thun element was not met as the "diagnostic criteria encompass all

symptoms and related functional impairment of the disability shown during the applicable time

frame and therefore are not inadequate." R. at 13.

Mr. Urban argues that the Board erred when it failed to consider his use of Symbicort to

treat asthma. He argues that Symbicort treatment is not contemplated by DC 6602 because it is

"neither a mere inhalational therapy nor an oral or parenteral corticosteroid." Reply Br. at 8.5

However, to address this question the Court would be required to determine whether Symbicort is

contemplated by DC 6602, an argument that Mr. Urban explicitly withdrew.6 Therefore, the Court

will not consider this argument further. See Pederson v. McDonald, 27 Vet.App. 276, 281-86

(2015) (en banc) (declining to review the merits of an issue not argued on appeal and dismissing

that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (same). To the extent

that Mr. Urban contends that the Board erred when it failed to address whether his use of Symbicort

caused marked interference with employment—part of the second Thun element—there was no

need for the Board to address that element because it had properly determined that the first element

was not satisfied. See Yancy v. McDonald, 27 Vet.App. 484, 494-95 (2016) (clarifying that, "[i]f

either [Thun] element is not met, then referral for extraschedular consideration is not appropriate").

Given that the Board properly found that Mr. Urban does not meet the first Thun element, the

5

At oral argument, Mr. Urban explained that he was not arguing that an extraschedular evaluation was

warranted to account for OSA symptoms not explicitly listed under DC 6602 for asthma, which is his predominant

disability; thus, the Court need not address that or related issues any further.

6

See supra note 2.

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Court need not address the other Thun related argument raised, as any error in that regard is

harmless. See 38 U.S.C. § 7261(b)(2); Sanders, 556 U.S. at 409.

III. CONCLUSION

After consideration of the parties' briefs and oral arguments, the record on appeal, and the

governing law, the September 15, 2015, Board decision is AFFIRMED.

15