Link to original post
I’m helping a veteran who might have found a CUE involving an asthma rating. They got 10%, but believe they should have received 30%. I just need some help finding the correct regulation/law/court opinion to help them fight this. The claim became final about 16 years ago that was filed a couple of years after they got out, but they did win service connection.
The C&P doctor said the veteran’s asthma was “well-controlled with beta agonist inhalers”, but did not indicate the frequency (daily or intermittent).
Medical definition of asthma, indicating it is due to inflammation making the airways swell:
Medical definition of beta agonist, indicating it is a medication that opens the airways (i.e. reverses the swelling):
The medical definition states several doses are often necessary each day due to short duration of action, which indicates the standard of care of their use.
38 CFR 4.97:
The veteran’s award letter states they met the 10% criteria due to their FEV-1/FVC being at 75%, but makes no mention of medication use other than quoting “beta agonist inhalers”.
The veteran’s service medical records are riddled with prescriptions for albuterol inhalers (beta agonist), but none of them indicate if it was for daily or intermittent use. After service, their medications were filled at Wal-mart and say “up to 4 times daily as needed”, which matches the recommended standard of care.
We are exploring the options regarding the rating criteria.
30%: “daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication”
10%: “intermittent inhalational or oral bronchodilator therapy”
The regulation does not define inhalational anti-inflammatory medication.
The veteran recalls telling the C&P doctor that they took their inhaler daily, but the C&P doctor merely indicated the name of the medication – not the frequency.
I recall some regulation or ruling indicating that the rater is not supposed to substitute their medical opinion. The newer DBQ’s include the checkboxes for the doc to fill out, but the older C&P questionnaires did not.
We were able to look up the medically accepted definitions (above) which indicate beta agonists are inhaled, bronchodilators, and are also anti-inflammatory. So the big question is which % should they really have received?
Any help would be greatly appreciated.
Read the full thread below
This question probably boils down to the VAs definition of inhalational anti-inflammatory medication. Im helping a veteran who might have found a CUE involving an asthma rating. They got 10%, but believe they should have received 30%. I just need some help finding the correct regulation/law/court...