Urban: Obstructive Sleep Apnea and Asthma and Agency Deference

Urban v. Shulkin, Case Number 15-3744, decided September 18, 2017 considers 38 CFR Section 4.96(a) and how to evaluate two disabilities on the basis of the predominate respiratory disability alone.  Underpinning this case is extensive case law calling for courts to defer to reasonable agency interpretations of regulations.

Here, the veteran was service connected for both asthma and obstructive sleep apnea, but only given a 60% rating based on the asthma.  The Board noted that if rated separately, the OSA disability would be evaluated at 50%, but noted 4.96(a) called for awarding a rating for the predominate respiratory disability. 

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.

The veteran argued the phrase requires the VA to look at symptoms of both disabilities and rate them under DC 6602, essentially arguing his symptoms need not match the criteria for a higher evaluation listed in listed in DC 6602 to obtain a higher evaluation under 4.96(a) and that OSA symptoms not listed in DC 6602 may form the basis of a higher evaluation under DC 6602. 

The VA contended that after determining which disability is predominate (which gives a higher rating), the VA should then apply the predominate disability diagnostic code and consider all symptoms attributable to either disability that is found in the predominate diagnostic code.

The Court found 4.96(a) was ambiguous and determined the VA’s interpretation was warranted deference.  If found the VA’s interpretation was reasonable and consistent and this interpretation would avoid pyramiding. 

The veteran then argued that the VA’s application of 4.96(a) is flawed because the symptoms and treatment for OSA and asthma are so different.  The Court then noted:

[U]nderlying 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. 

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.

The veteran also argued the case should have been referred for extraschedular considerations, but the Court rejected this argument as well.

This is a narrow decision addressing 38 CFR Section 4.96(a) and the use of a predominate respiratory disability, however, it also demonstrates how agency deference can work against a veteran.  It certainly shows a failing of the respiratory disability regulations, but also shows the Court will defer to the VA’s interpretation in many situations.  However, the veteran may still have a path forward using TDIU, which should allow for the use of symptoms or both OSA and asthma.

Decision by Judge Bartley, joined in by Chief Judge Davis and Judge Pietsch.