Respiratory System

Respiratory disabilities are evaluated under 38 C.F.R. § 4.97, which includes Diseases of the Nose and Throat, Diseases of the Trachea and Bronchi, Diseases of the Lungs and Pleura (tuberculosis and non tuberculous diseases), as well as sleep apnea syndromes. The majority of the Diseases of the Trachea and Bronchi, and Diseases of the Lungs and Pleura are rated based on the results of pulmonary function tests (PFTs). For those disabilities, only the post-bronchodilator results may be used to assign a rating, unless the pre-bronchodilator results are poorer. 38 C.F.R. § 4.96(d)(5).

Interstitial Lung Disease Rating Criteria

Asthma Rating Criteria

💬 Advocacy Advice 💬

<aside> <img src="https://s3-us-west-2.amazonaws.com/secure.notion-static.com/73a7f16e-716a-4b22-b8ab-c6123a561c6e/goldennugget.png" alt="https://s3-us-west-2.amazonaws.com/secure.notion-static.com/73a7f16e-716a-4b22-b8ab-c6123a561c6e/goldennugget.png" width="40px" /> Rule Against Pyramiding

VA regulations prohibit compensating a veteran more than once for the "same disability" or the "same manifestation" (pyramiding). The schedule for rating respiratory disabilities has incorporated this concept by explicitly prohibiting separate ratings for certain respiratory disabilities. Specifically, 38 C.F.R. § 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 evaluation to the next higher evaluation where the severity of the overall disability warrants such elevation."

This means that, for example, if a veteran suffers from both bronchial asthma (rated under DC 6602) and obstructive sleep apnea (rated under DC 6847), she may receive only one disability rating; she cannot be awarded separate ratings for each condition.

Further, a veteran may receive "the next higher evaluation" only when the symptoms of the non-predominant disability satisfy the criteria for the next higher rating under the DC that is used to rate the predominant disability. 38 C.F.R. § 4.96(a).

Thus, if the veteran's bronchial asthma is the predominant disability, and it requires treatment with daily inhalational bronchodilator therapy, she is entitled to a 30% rating under DC 6602-469 Under 38 C.F.R. § 4.96(a).

She can receive "the next higher evaluation" of 60% under DC 6602 only if her sleep apnea results in the symptoms listed in the criteria for a 60% rating under DC 6602, i.e., an FEV-1 of 40- to 55% predicted, an FEV-1/ FVC of 40 to 44%, at least monthly visits to a physician for required care of exacerbations, or intermittent courses of systemic corticosteroids.

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<aside> <img src="https://s3-us-west-2.amazonaws.com/secure.notion-static.com/f3a951d4-97b3-4b91-9ed7-22ac17eda589/add.png" alt="https://s3-us-west-2.amazonaws.com/secure.notion-static.com/f3a951d4-97b3-4b91-9ed7-22ac17eda589/add.png" width="40px" /> Extraschedular Consideration. In some cases, none of the symptoms listed in the Diagnostic Criteria for the predominant and non-predominant respiratory disabilities are actually overlapping. For example, the DC for bronchial asthma (DC 6602) does not contemplate any of the symptoms listed in the DC for obstructive sleep apnea (DC 6847). In such cases, the advocate should argue that the symptoms of the non-predominant disability should be considered in an extraschedular analysis.

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Proposed Revisions to the Respiratory System Rating Schedule

In February 2022, VA proposed extensive changes to the Schedule for Rating Disabilities of the Respiratory System, to include redesignating the Diseases of the Nose and Throat, under a new body system, "Ear, Nose, Throat, and Audiology Disabilities[,]" amending the rating criteria under the General Rating Formula for Respiratory Conditions, by making diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) testing discretionary rather than required, adding the use of metabolic equivalents (METS) for evaluating comorbid respiratory and cardiovascular conditions, and removing the need to utilize post-bronchodilator results as a more accurate value in evaluating respiratory disabilities. The proposed regulations also revise the rating criteria for sleep apnea syndrome, specifically assigning a noncompensable evaluation when the condition is asymptomatic, with or without treatment, assigning a 10 percent evaluation when treatment yields "incomplete relief' and assigning a 50% and 100% rating only when treatment is either ineffective or the veteran is unable to use the prescribed treatment due to comorbid conditions, reserving a 100% evaluation only if there is also end-organ damage.