Citation Nr: 0030914 Decision Date: 11/29/00 Archive Date: 12/06/00 DOCKET NO. 93-15 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for sinusitis directly and as secondary to service connected bronchial asthma. 2. Entitlement to an increased evaluation for service connected bronchial asthma, currently evaluated as 30 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Associate Counsel INTRODUCTION The appellant had active service from August 1984 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1991 rating decision of the San Juan, Puerto Rico, Regional Office (RO), of the Department of Veterans Affairs (VA), which denied entitlement to service connection for sinusitis, and which continued a 10 percent evaluation for the appellant's service connected bronchial asthma. The appellant filed a timely notice of disagreement and perfected a substantive appeal. In May 1992, the appellant testified at a hearing over which a hearing officer of the RO presided. By rating action dated in November 1992, the RO determined that the appellant's service connected bronchial asthma, to include allergic rhinitis, warranted a 30 percent evaluation, and was made effective for the entire time under appeal. However, the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeal) (the Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Corchado v. Derwinski, 1 Vet. App. 160 (1991). Consequently, the issue of an increased evaluation above the current 30 percent has remained in appellate status. In May 1995, this matter was before the Board, wherein it was remanded for additional development. By rating action dated in June 1999, the RO determined that the appellant's service connected bronchial asthma should be rated separately from his allergic rhinitis disability. Accordingly, the RO continued the 30 percent rating evaluation for the service connected allergic bronchial asthma, effective as of May 10, 1999, and assigned a noncompensable rating evaluation for the service connected allergic rhinitis. The Board notes that the veteran has not initiated an appeal regarding the assignment of a noncompensable rating evaluation for his service connected allergic rhinitis, therefore the matter is not now before the Board. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.201, 20.302 (2000). Absent a decision, a notice of disagreement and a substantive appeal the Board does not have jurisdiction of the issue. Rowell v. Principi, 4 Vet.App. 9 (1993); Roy v. Brown, 5 Vet.App. 554 (1993). Jurisdiction does indeed matter and it is not "harmless" when VA, during the claims adjudication, process fails to consider threshold jurisdictional issues. McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). An application that is not in accord with the statute shall not be entertained. 38 U.S.C.A. § 7108 (West 1991). The issue is, therefore, referred to the RO so that the appellant may be notified by letter of his complete appellate rights as to the issue. FINDINGS OF FACT 1. The appellant's sinusitis was not shown in service and was first shown several years after service. 2. There is no competent medical opinion relating the appellant's sinusitis to service or to service connected disability. 3. The appellant's bronchial asthma is currently manifested by symptoms of a few scattered respiratory wheezes bilaterally, with an FEV-1 of 99 percent predicted and an FEV-1/FVC of 109 percent predicted. 4. The evidence does not more nearly show 1 or more attacks weekly with marked dyspnea on exertion between attacks or at least 3 courses a year of systemic corticosteroids. CONCLUSIONS OF LAW 1. Sinusitis was not incurred in or aggravated by service and is not proximately due to or the result of service connected disability. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.310 (2000). 2. The schedular criteria for a disability rating in excess of 30 percent for bronchial asthma have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.96, Diagnostic Code 6602 (1995) (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking entitlement to service connection for sinusitis secondary to the service connected bronchial asthma disability. The appellant is also seeking an increased disability rating for his service connected bronchial asthma. In the interest of clarity, the Board will separately discuss the service connection and the increased rating issues. During the pendency of the veteran's appeal, new legislation has come into effect. The law now further provides that the Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The Secretary may defer providing assistance pending the submission by the claimant of essential information missing from the application. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, ___ (2000) (to be codified at 38 U.S.C. § 5103A(a)). The law further provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the evidence of record (lay or medical) includes competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, ___ (2000) (to be codified at 38 U.S.C. § 5103A(d)). After review of the evidence, the Board first finds that VA has fulfilled its statutory duty to assist the appellant in the development of his claims. See 38 U.S.C. § 5103A. As noted above, the Board remanded this case to the RO in May 1995 so that additional evidentiary development could be accomplished. This was done. More specifically, all available treatment records mentioned by the appellant have been obtained, and he has been afforded VA examinations, including recent examination which includes the examiner's medical opinion. The appellant and his representative have been given ample opportunity to present evidence and argument in support of his claims. The Board is not aware of any relevant evidence pertaining to these issues which has not been obtained, and the appellant and his representative have pointed to no such evidence. Consequently, the Board will proceed to adjudicate these matters. Once the evidence has been assembled, it is the Board's responsibility to evaluate all of the evidence. See 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for sinusitis: Relevant Law and Regulations Service connection - in general: In general, the applicable law and regulations state that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (2000). Service connection may be also granted for any disease first diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2000). Secondary service connection: Service connection may be granted for a disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2000). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non service- connected condition by a service-connected condition is compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Factual Background A review of the appellant's service medical records reveals a physical examination report dated in December 1983, conducted for purposes of enlistment into service, which shows that his sinuses were normal upon clinical evaluation. The associated report of medical history, also dated in December 1983, shows that the appellant indicated he did not then have, nor had he ever had, sinusitis. The report of medical examination dated in August 1984, conducted for purposes of discharge from service, shows that his sinuses were normal upon clinical evaluation. The associated report of medical history, dated in August 1984, completed by the appellant, shows that he indicated he did not then have, nor had he ever had, sinusitis. Private outpatient treatment records dated from April 1985 to September 1985 show that the appellant was treated for symptoms associated with exercise related asthma. The assessments in April 1985 included possible sinusitis, but on examination in May 1985 it was reported that there was no evidence of sinusitis. References were made to a history of and impressions of sinusitis on private and VA treatment records in April and May 1987. However, a private radiology report of the paranasal sinuses dated in April 1987 shows agenesis of the frontal sinus, and the rest of the paranasal sinuses were well developed and clear. A VA radiological report dated in April 1991 showed that there was hypoplasia of the right frontal sinus and agenesis of the left. There was deviation of the nasal septum toward the left and haziness of the ethmoid and maxillary sinuses. Otherwise, there was no significant abnormality. The impression showed findings consistent with ethmoid and maxillary sinusitis, with deviation of the nasal septum toward the left. A VA outpatient treatment record dated in May 1991 shows an assessment which included ethmoid and maxillary sinusitis. The appellant testified at a hearing before a hearing officer of the RO in May 1992. He indicated that during his period of active service and thereafter, he had experienced episodes of runny nose followed by asthma attacks. He indicated that, since his return to Puerto Rico, he had been treated for allergic rhinitis and bronchial asthma, and that he was now told that he had sinusitis. He stated that he had been told by his physician that the sinusitis was the result of his allergic rhinitis. The appellant underwent a VA examination in June 1992. He reported episodes of sneezing, watery nasal discharge, fullness sensation of the molar region, and an itching sensation of the throat. Examination revealed congestive nasal turbinators and slight deviation to the left causing obstruction. X-rays of the paranasal sinuses demonstrated that they were well aerated and had intact bony walls. The sella turcica was normal in size and configuration. The diagnosis was allergic rhinitis. An addendum to the June 1992 VA examination, dated in August 1992, reveals that the appellant's sinus X-rays were negative for sinusitis, and that he had been given a diagnosis of allergic rhinitis. The examiner concluded that allergic rhinitis should be considered part of the general allergic process present in the appellant. VA outpatient treatment records dated from February 1992 to January 1997 reveal that the appellant received periodic treatment for bronchial asthma, sinusitis, and rhinitis. The conditions were said to be under control with medication. The appellant underwent a VA examination in June 1997. He indicated that he usually had asthma attacks, twice a day, which consisted of generalized itching, sneezing, chest tightness, nasal congestion, wheezing, and dyspnea. The diagnosis was bronchial asthma. VA outpatient treatment records dated from February 1997 to November 1998 reveals that the appellant was treated for symptoms which included nasal congestion and headaches. The diagnostic impressions included acute and recurrent sinusitis. The appellant underwent a VA examination in January 1999. There was no indication that he had active symptoms associated with sinusitis. There were no septal deviations noted. The diagnosis included history of bronchial asthma and history of allergic rhinitis. A VA outpatient treatment record dated in May 1999 shows that the appellant was treated for symptoms associated with sinusitis. The assessment included acute sinusitis. The appellant underwent a VA examination in June 1999. The examiner indicated that there was no history of nasal or sinuses surgery. The appellant reported nasal congestion and obstruction and being a mouth breather. He also reported occasional foul smell from his nose. X-rays of the paranasal sinuses indicate that there was mild mucosal thickening of the maxillary sinus level due to sinus disease. There were hypoplastic frontal sinuses noted (normal variant). The nasal septum was mildly deviated towards the left side, and the nasal turbinates were unremarkable. Physical examination revealed that there was no purulent discharge or crusting present. The diagnosis was nasal septum deviation and chronic maxillary sinusitis. The examiner remarked that the nasal septum deviation and chronic maxillary sinusitis were not secondary to bronchial asthma. Analysis Direct service connection: The Court has concluded that in order to prevail on the issue of service connection on the merits, "there must be medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza [v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]; see also Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit [v. Brown, 5 Vet. App. 91, 93 (1993)]." Hickson v. West, 12 Vet. App. 247, 253 (1999). With respect to current disability, the medical evidence indicates that in June 1999, the appellant was diagnosed, in pertinent part, with chronic maxillary sinusitis. However, the service medical records are completely silent as to a disease or injury associated with sinusitis during the appellant's period of active service. As set forth above, both the appellant's entrance and discharge examinations dated in December 1983 and August 1984, respectively, indicate that upon clinical evaluation, his sinuses were normal. Moreover, the appellant, himself indicated on the report of medical history, dated in August 1984 and completed for purposes of separation, that he did not then have, nor had he ever had sinusitis. The first evidence of record that the appellant had a diagnosis of sinusitis is not until 1991, more than six years subsequent to his separation from service. There is also no evidence of record by a competent authority that the appellant's sinusitis was the result of his period of active service. Although the appellant is competent to relate his symptoms, he is not competent to provide a medical diagnosis for those symptoms. Here, he contends that he has had a continuity of symptoms of sinusitis since service However, there is no medical evidence showing that his respiratory symptoms since service were attributable to sinusitis. Rather, despite ongoing treatment for respiratory disease since service, sinusitis was first found in 1991. Thus, the preponderance of the evidence is against a finding of chronic sinusitis in service or a continuity of sinus symptomatology from service to the present. Se Savage v. Gober, 10 Vet. App. 488 (1997). In the absence of specific medical evidence, the Board is not able to conclude, on its own, that the appellant has a current sinusitis disability that could be related to any incident of service origin. See Colvin v. Derwinski, 1 Vet. App. 171, 177 (1991). Secondary service connection: In order to establish such service connection, there must be evidence of the claimed disability; a service-connected disease or injury; and a nexus, established by competent medical evidence, between the two. Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In this case, the appellant has chronic maxillary sinusitis disability and service connected bronchial asthma disability. However, there has been presented no medical opinion which links the appellant's current chronic maxillary sinusitis disability to his service connected bronchial asthma disability. Rather, the examiner in the June 1999 VA examination specifically remarked that the appellant's nasal septal deviation and chronic sinusitis were not secondary to bronchial asthma. There is also no medical opinion suggesting that the appellant's sinusitis has been worsened or aggravated by reason of his service-connected asthma. For that reason, the appellant's claim fails. During his May 1992 testimony, the appellant testified that during his period of active service, he experienced episodes of runny nose followed by asthma attacks. He indicated that since his return, he had been treated for allergic rhinitis and bronchial asthma, and that he was told that he had sinusitis. He also asserted that he had been told by his physician that the sinusitis was the result of his allergic rhinitis. However, the appellant did not provide specific medical evidence to support his assertion. The appellant is competent to comment on the symptoms which he is experiencing. However, as indicated hereinabove, his own statements cannot supply a competent medical diagnosis of a current medical disability, its date of onset, or its etiology. These matters can only be established by competent medical evidence. See Espiritu, 2 Vet. App. at 494; Grottveit, 5 Vet. App. at 93. Such evidence is lacking. In short, the appellant has not shown that he has a sinusitis disability which is related to his service connected bronchial asthma or allergic rhinitis. Although the Board has absolutely no reason to doubt the appellant's sincerity, as indicated above he has not presented the required medical nexus evidence. Accordingly, the benefit sought on appeal is denied. 2. Increased evaluation for bronchial asthma: Relevant Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (2000). The percentage ratings contained in the Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a); 4.1 (2000). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2 and 4.41(2000), which require the evaluation of the complete medical history of the appellant's condition. The Court has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The VA rating schedule recognizes that an appellant's disability evaluation may require re-ratings in accordance with changes in his condition. It is thus essential, in evaluating a disability, that it be viewed in relation to its history. 38 C.F.R. § 4.1 (2000). The Board notes that where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent Congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). The Board also notes that the regulations pertaining to the respiratory system were revised during the pendency of the appellant's claim. Bronchial asthma is rated under the portion of the Schedule that pertains to the respiratory system and diseases of the trachea and bronchi. 38 C.F.R. § 4.97, Diagnostic Code 6602. Effective October 7, 1996, the rating schedule for diseases of the trachea and bronchi was amended without redesignation, except for the addition of a separate rating code section for chronic obstructive pulmonary disease at 38 C.F.R. § 4.97, Diagnostic Code 6604. 61 Fed. Reg. 46728 (Sept. 5, 1996). Therefore, the appellant's claim for increased rating for bronchial asthma will be evaluated under both the new and old law. Pursuant to the VA Rating Schedule in effect before October 7, 1996, with respect to bronchial asthma, a 10 percent rating is provided for mild symptoms with paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks. A 30 percent rating is provided for moderate bronchial asthma, with rather frequent asthmatic attacks (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks. A 60 percent rating is provided for severe bronchial asthma, characterized by frequent attacks of asthma (one or more attacks weekly), with marked dyspnea on exertion between attacks with only temporary relief by medication; and preclusion of more than light manual labor. A 100 percent rating is warranted for pronounced symptoms, characterized by very frequent asthmatic attacks with severe dyspnea on slight exertion between attacks and with marked loss of weight or other evidence of severe impairment of health. 38 C.F.R. § 4.97, Diagnostic Code 6602 (1996). The revised diagnostic codes in effect as of October 7, 1996 provide that bronchial asthma is to be evaluated based on the results of pulmonary function tests. The specific pulmonary function tests include the percent of predicted values for Forced Expiratory Volume in one second (FEV-1) and Forced Vital Capacity (FVC), the ratio of FEV-1 to FVC (FEV-1/FVC), the percent of predicted value for Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)), and the veteran's maximum exercise capacity in terms of milligrams/kilograms/minute (ml/kg/min) of oxygen consumption. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2000). Pursuant to the revised Rating Schedule for bronchial asthma, a 10 percent disability rating is warranted for FEV-1 levels of 71 to 80 percent of predicted, FEV-1/FVC levels of 71 to 80 percent, or intermittent inhalation or oral bronchodilator therapy. A 30 percent rating is warranted for FEV-1 levels of 56 to 70 percent, FEV-1/FVC levels of 56 to 70 percent, daily inhalation or oral bronchodilator therapy or inhalation anti- inflammatory medication. A 60 percent rating is warranted for FEV-1 levels of 40- to 55 percent, FEV-1/FVC levels of 40 to 55 percent, 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. A 100 percent evaluation is warranted for FEV-1 levels of less than 40 percent of predicted, FEV-1/FVC levels of less than 40 percent, more than one attack per week with episodes of respiratory failure, or symptoms requiring daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2000). Ratings under Diagnostic Codes 6600 to 6618, inclusive, and 6821, will not be combined with each other. Rather, in rating coexisting respiratory conditions, a single rating will be assigned which reflects the predominant disability picture with elevation to the next higher evaluation where the severity of the overall disability picture warrants such elevation. 38 C.F.R. § 4.96(a) (1996); 38 C.F.R. § 4.96(a) (2000). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2000). Factual Background In considering the severity of a disability, consideration of the entire recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Service medical records reveal that the appellant's bronchial asthma was manifested during his period of active service. Subsequent to service, by rating action dated in September 1986, based on the service medical records and post-service pulmonary function test results, the appellant was granted entitlement to service connection for bronchial asthma, wherein a 10 percent evaluation was assigned effective as of September 6, 1984. VA outpatient treatment records dated from April 1991 to June 1991 show that the appellant was treated for reports of frequent headaches, running nose, and chronic congestion. Examination of the lungs showed mild expiratory wheezes. The diagnoses included controlled bronchial asthma, chronic rhinitis, and sinusitis. The appellant testified at a hearing before a hearing officer of the RO in May 1992. He indicated that he would get two attacks per day and that he would give himself respiratory therapy. He stated that he undergoes the therapy at least once per week without failure. He also indicated that he would use an inhaler, sometimes four times per day and other times not at all. He indicated that he used approximately one inhaler per month. He estimated that he experienced approximately four severe attacks over a two month period. He noted that he had about four or five less severe attacks per week. He stated that, as a preventive measure, he would give himself respiratory therapy when he would see the attack coming. The appellant concluded by stating that his asthma disability resulted in problems in his ability to remain employed as it contributed to his absenteeism and limited the environment in which he could work. The appellant underwent a VA examination in June 1992. He reported having had asthma and sinus problems since his period of active service. He indicated that he had been under treatment with Ventolin inhalers, oral Theophylline, Bronkosol with power nebulizers, Seldane, decongestant and antibiotics. He indicated that he continued with asthma on and off since then, precipitated mostly by house dust inhalation, physical exertion or irritant inhalants such as perfumes. His attacks were described as consisting of excessive nasal drip, chest tightness, wheezing, and dyspnea lasting some 15 to 30 minutes with no therapy, but rapidly responding to Ventolin inhaler. Physical examination revealed prolonged expiratory phase with late expiratory wheezes, bilaterally. There was no cyanosis, clubbing, or presence of cor pulmonale. Frequency of asthma was said to be 2-3 times a week. Chest X-ray showed that lungs were mildly hyperinflated with some prominence of interstitial pattern basally but no evidence of infiltrates. The diagnosis was bronchial asthma with minimal airflow obstruction. A pulmonary function test, performed in June 1992, revealed a pre/post-drug FEV-1 of 58/65 percent predicted and a pre/post-drug FEV-1/FVC of 94/104 percent predicted. The test examiner reported that there was suboptimal patient effort, minimal airflow obstruction, and no significant response to inhaled bronchodilators. There was decreased expiratory reserve volumes as seen in obesity. The examiner concluded that the results could not be compared to the previous study which was normal because of the poor effort. By hearing officer's decision dated in September 1992, the appellant's service connected disability evaluation was increased to 30 percent disabling. This increase was implemented by rating action of the RO dated in November 1992, and made effective as of August 9, 1991. VA outpatient treatment records dated from April 1990 to January 1997 reveal that the appellant received periodic treatment for bronchial asthma, sinusitis, and rhinitis. The conditions were said to be under control with medication. Lungs were clear on most physical examinations. A pulmonary function test, performed in September 1996, revealed a pre-drug FEV-1 of 99 percent predicted and a pre- drug FEV-1/FVC of 106 percent predicted. The test examiner reported normal spirometry and lung volumes. There was combined mild metabolic alkalosis and respiratory acidosis. There was normal A-a gradient and relative hypoxemia for age. The appellant underwent a VA examination in June 1997. He reported increasing frequency of his asthma attacks since his previous examination. He indicated that he usually had attacks twice a day, which consisted of generalized itching, sneezing, chest tightness, nasal congestion, wheezing, and dyspnea. The response to the bronchodilator inhalation was said to usually be adequate in 3 to 5 "months." He was taking Vanceril, Albuterol puff, Intal, Nasalcrom plus Proventil inhalant with power nebulizer. Physical examination of the chest showed normal expansions, lungs with a few scattered wheezes bilaterally and without rhonchi. There was no heart murmur and no clubbing or cyanosis of the extremities. There was no evidence of cor pulmonale. The cough was said to usually be dry and there was mild dyspnea on effort. The diagnosis was bronchial asthma. The associated pulmonary function test, dated in June 1997, revealed a pre-drug FEV-1 of 97 percent predicted and a pre- drug FEV-1/FVC of 107 percent predicted. The test examiner reported normal spirometry and lung volumes. The arterial blood gasses (ABG's) at room air showed normal acid base balance and normal A-a gradient in comparison with the September 1996 results. The hypoxemia was said to have improved. VA outpatient treatment records dated from February 1997 to November 1998 reveals that the appellant was treated for symptoms associated with nasal congestion, headaches, bronchial asthma, weight loss, rhinitis, and acute sinusitis. The diagnostic impressions included acute and recurrent sinusitis. The appellant underwent a VA examination in January 1999. The appellant indicated that his bronchial asthma medication would momentarily cause his blood pressure to rise, but that it would return to normal as the medication levels fell. Physical examination revealed that there were no septal deviations. The chest showed symmetric, normal chest excursions, and the lungs were clear to auscultation. The diagnosis included history of bronchial asthma. A VA outpatient treatment record dated in May 1999 shows that the appellant was treated for symptoms associated with sinusitis, exacerbated allergic rhinitis and bronchial asthma. The assessment included stable bronchial asthma now, with exacerbation related to acute allergy episodes. The appellant underwent a VA examination in June 1999. The examiner indicated that there was no history of nasal or sinuses surgery. The appellant reported a history of bronchial asthma for years. The appellant reported nasal congestion and obstruction and being a mouth breather. He also reported occasional foul smell from his nose. He was said to have dyspnea only with bronchial asthma episodes. The diagnosis was nasal septum deviation and chronic maxillary sinusitis. The examiner remarked that the nasal septum deviation and chronic maxillary sinusitis were not secondary to bronchial asthma. Analysis Evaluation pursuant to the criteria in effect prior to October 7, 1996: Considering first an increased rating under the old regulations, the more recent records, dating from April 1991, do not show the severity of symptoms equivalent to a 100 percent or 60 percent evaluation. The outpatient treatment records dated from April 1991 to June 1991 showed only mild expiratory wheezes. The VA examination in June 1992 showed a prolonged expiratory phase with late expiratory wheezes, mildly hyperinflated lungs with some prominence of interstitial pattern basally but no evidence of infiltrates, and a diagnosis of bronchial asthma with minimal airflow obstruction. The associated pulmonary function test showed minimal airflow obstruction despite reported suboptimal patient effort. The VA outpatient treatment records dated from September to January 1997 showed periodic treatment for bronchial asthma with conditions under control with medication. The pulmonary function test of September 1996 revealed normal spirometry and lung volumes, mild metabolic alkalosis and respiratory acidosis, and normal A-a gradient with relative hypoxemia for age. The pulmonary function test of June 1997 revealed normal spirometry and lung volumes, normal acid base balance, normal A-a gradient, and improved hypoxemia. The VA examination of January 1999 simply showed a history of bronchial asthma, and VA outpatient treatment records from May 1999 showed stable bronchial asthma, with exacerbations related to acute allergy episodes. The records do not show medically verified evidence of very frequent or frequent asthmatic attacks. The outpatient treatment records do not disclose frequent visits to physicians for treatment of specific attacks or evidence of numerous visits to emergency departments. As to the appellant's testimony of May 1992 wherein he indicated he would get two attacks per day and that he would give himself respiratory therapy, he also estimated that he averaged approximately four severe attacks over a two month period, and that those were often prevented by giving himself respiratory therapy when he would see the attack coming. Moreover, the pulmonary function tests since the date of his testimony, have consistently shown only mild impairment, and there is no evidence in the compensation examinations or outpatient treatment records of marked dyspnea with exertion between asthma attacks. Accordingly, the appellant's bronchial asthma disability is no more than moderately disabling, thus equating to a 30 percent rating under the old criteria. Evaluation pursuant to the criteria in effect as of October 7, 1996: Under the new regulations, the appellant's bronchial asthma also warrants not more than a 30 percent evaluation. The pulmonary function test results dated in June 1992 revealed a FEV-1 of 65 percent predicted and a FEV-1/FVC of 104 percent predicted. The pulmonary function test results dated in September 1996 revealed a FEV-1 of 99 percent predicted and a FEV-1/FVC of 106 percent predicted. The pulmonary function test results dated in June 1997 revealed a FEV-1 of 97 percent predicted and a FEV-1/FVC of 107 percent predicted. While the findings of the June 1992 results are clearly indicative of a 30 percent evaluation under the current criteria, the more recent results are indicative of no more than that of a noncompensable evaluation. Further, for a 60 percent rating to apply without a lower percentage of predicted, the appellant would have to show either monthly visits to a physician for required care for exacerbations or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. The records fail to show regular monthly physician office visits required for treatment of exacerbations of asthma. Although the appellant was seen on a regular monthly basis for various disabilities, but primarily for his asthma, the records show only ongoing follow-up for a stable condition. They do not show that monthly visits were occasioned by exacerbations of asthma. Moreover, the recent records do not show treatment with a course of systemic oral or parenteral steroids, and the records since 1990 do not show at least three courses of corticosteroids per year. Accordingly, the evidence does not show that an evaluation in excess of 30 percent is warranted. The Board notes the appellant's testimony to the effect that he had severe asthma attacks four times in two months on average, and minor attacks four to five times per week, but that he used the nebulizer to prevent severe attacks when he predicted their onset. His statements, however, do not overcome the clinical evidence of record which establishes that the appellant's bronchial asthma disability is manifested by mild ventilatory impairment and is not more than moderately disabling. Although the Board has also considered the applicability of the reasonable doubt doctrine, it finds that there is no approximate balance of positive and negative evidence with respect to this issue. Therefore, that doctrine is not for applicable to this case. See 38 C.F.R. § 3.102 (2000). ORDER Entitlement to service connection for sinusitis directly and as secondary to service connected bronchial asthma disability is denied. Entitlement to an increased evaluation for service connected bronchial asthma is denied. HOLLY E. MOEHLMANN Veterans Law Judge Board of Veterans' Appeals - 20 - - 1 -