Possible CUE for asthma % due to way medication was described

[Vync]

This question probably boils down to the VA's definition of "inhalational anti-inflammatory medication".

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:

Quote

Asthma is a chronic, or long-term, condition that intermittently inflames and narrows the airways in the lungs. The inflammation makes the airways swell. Asthma causes periods of wheezing, chest tightness, shortness of breath, and coughing. People who have asthma may experience symptoms that range from mild to severe and that may happen rarely or every day. When symptoms get worse, it is called an asthma attack. Asthma affects people of all ages and often starts during childhood.

 

Medical definition of beta agonist, indicating it is a medication that opens the airways (i.e. reverses the swelling):

Quote

Beta-agonist: A bronchodilator medicine that opens the airways by relaxing the muscles around the airways that may tighten during an asthma attack or in COPD (chronic obstructive pulmonary disease). Beta-agonists can be administered by inhalers or orally. They are called "agonists" because they activate the beta-2 receptor on the muscles surrounding the airways. Activation of beta-2 receptors relaxes the muscles surrounding the airways and opens the airways. Dilating airways helps to relieve the symptoms of dyspnea (shortness of breath). Beta-2 agonists have been shown to relieve dyspnea in many asthma and COPD patients. The action of beta-2 agonists starts within minutes after inhalation and lasts for about 4 hours. Because of their quick onset of action, beta-2 agonists are especially helpful for patients who are acutely short of breath but, because of their short duration of action, several doses of beta-agonists are often necessary each day. The side effects of beta-2 agonists include anxiety, tremor, palpitations or fast heart rate, and low blood potassium.

Examples of beta-2 agonists include albuterol (Ventolin, Proventil), metaproterenol (Alupent), pirbuterol (Maxair), terbutaline (Brethaire), isoetharine (Bronkosol), and Levalbuterol (Xopenex). Beta-2 agonists with a slower onset of action but a longer period of activity such as salmeterol xinafoate (Serevent) are now available. Salmeterol has a duration of action of twelve hours and need only be taken twice a day.

 

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:

Quote

6602   Asthma, bronchial:
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	100
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	60
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	30
FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy	10
Note: In the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record.

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 only two of about 45 indicate instances indicate it was for "daily use as needed". 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 and how it is worded:

• 30%: "daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication"
• 10%: "intermittent inhalational or oral bronchodilator therapy"

So far, they have been unable to find the VA's definition of "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.

 

 

Edited September 17, 2019 by Vync

[GeekySquid]

22 hours ago, Vync said:

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.

You will need to find the PDR at that time and look at that drug for dosing instructions at that time.

If I read you right, he got inhalers in service. His STRs should say the name of the drug he got. If the records don't state a frequency of use, then look to the drugs history of dosing and the manufacturers recommendations in effect at that time.

I think you will find a lot of those medications were "as needed" not to exceed xxx times a day.

An MD may be needed to opine that way back then the standard was blah blah blah.

Is that section of 4.97 you posted the current one or from when he was rated? I know you know this, but you need to use the one from when he was rated.

If you can show that above info then a 4.6 claim is probably warranted.

[Vync]

21 hours ago, GeekySquid said:

You will need to find the PDR at that time and look at that drug for dosing instructions at that time.

If I read you right, he got inhalers in service. His STRs should say the name of the drug he got. If the records don't state a frequency of use, then look to the drugs history of dosing and the manufacturers recommendations in effect at that time.

I think you will find a lot of those medications were "as needed" not to exceed xxx times a day.

An MD may be needed to opine that way back then the standard was blah blah blah.

Is that section of 4.97 you posted the current one or from when he was rated? I know you know this, but you need to use the one from when he was rated.

If you can show that above info then a 4.6 claim is probably warranted.

That sounds like a good idea. Did not think about using the PDR to fill in the blanks. 

4.97 was from when the decision was made

[GeekySquid]

1 hour ago, Vync said:

That sounds like a good idea. Did not think about using the PDR to fill in the blanks. 

4.97 was from when the decision was made

get all the stuff from that time, search PubMed for that era for papers on the subject and studies. do the condition and the drug(s)

[Richard1954]

I have had asthma all my life.... as such I know all about the disease and how it is rated and its medications.

 I will first suggest that the medical records where likely available for review by the rater, in those medical records it will state the dose of the medication which is almost  always 2 puffs - followed by how many times a day.  which by my experience is always 2 times a day or as needed ( as needed is decided by the guy using the inhaler) 

If medication is prescribed as needed then there is no real clear way to determine the dose of the user.....one day it could be none the next it could be 4 or 6 .. but again the dose can be found in the medical records.  The examiner should have quoted the dose, but personally I don't think it matters because the rater is required to review the total medical record.

While the rating guidelines say intermittent or daily inhalation almost 100% of the time the veteran is going to be rated based on the FEV1/ FVC  numbers. These numbers come from the Pulmonary functions test.  There is no way to cheat on these test and through out the years they have greatly improved the equipment and testing requirements.   All C/P exams require a pulmonary functions test.

I am willing to bet that they rated him based on the results of the test and not the use of the medication and frankly the test result is more reliable. 

I can remember taking these test all the time, and I could not believe that my numbers seemed to be low while the use of medication was always high.. I was never rated based on use of the medications but the numbers of the FEV1/FVC only 

 

Inhaled steroids are  anti-inflammatory drugs and are the most effective and commonly used long-term control medications for asthma. They reduce swelling and tightening in your airways

The va does not define the types of medications, the drug companies make that determination.

[Vync]

@Richard1954 

The veteran checked his medical records. All the doctor did was write the name of the medication to be prescribed. He said the dosage and frequency was hand written on a prescription pad, which was turned into the pharmacy and never made it back to the STRs. His FEV1/FVC was 81%, which was in the 10% range. His asthma never worsened to the point where he had to take inhaled steroids.

[Richard1954]

@vync

If the dose is not in the records   its  hard to say what really transpired then....... while a Albuterol  is the normal inhaler for daily use 2 puffs each time it is used , steroid inhalers are usually prescribed after an asthmatic attack, and are taken once in the morning and once in the evening. If the medical records don't indicate the dose.... then his being rated at 10% with a 75% FEV1 /FVC .  would seem right. If he never used steroid inhalers after all these years....he is really doing good. sorry  I don't have much more than what I have already said.