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:
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?
Question
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:
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 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:
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.
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