Citation Nr: 0300400 Decision Date: 01/08/03 Archive Date: 01/28/03 DOCKET NO. 00-24 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased evaluation for bronchial asthma, currently evaluated as 60 percent disabling. (The issue of entitlement to service connection for lung fungus as secondary to bronchial asthma will be the subject of a later decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had active service from August 1970 to August 1973. Initially, the Board of Veterans' Appeals (Board) notes that it is pursuing additional development on the issue of entitlement to service connection for lung fungus as secondary to bronchial asthma under the authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)(2)). When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 20.903.) After giving the notice and reviewing your response to the notice, the Board will prepare a separate decision addressing this issue. FINDING OF FACT The veteran's bronchial asthma is manifested by symptoms that more nearly approximate Forced Expiratory Volume in one second (FEV-1) of less than 40 percent predicted, or; FEV-1/Forced Vital Capacity (FVC) less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno- suppressive medications. CONCLUSION OF LAW The criteria for a 100 percent schedular rating for bronchial asthma have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.7, 4.97, Diagnostic Code 6602 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board finds that the veteran's claim for increased rating has already been developed pursuant to the guidelines established in the recently enacted Veterans Claims Assistance Act of 2000, 38 U.S.C.A. § 5103A (West Supp. 2002) (VCAA). In this regard, the veteran was afforded a comprehensive respiratory examination in November 2000, and the record also contains extensive Department of Veterans Affairs (VA) outpatient treatment records that further enable the Board to properly assess the severity of the veteran's service- connected bronchial asthma. The Board further notes that the veteran has been advised of the actions that had been and would be taken by VA to develop the claim in the September 2001 statement of the case and March 2002 supplemental statement of the case, and thus, the veteran was clearly aware of what evidence she could provide to assist in the development of her case. Quattuccio v. Principi, 16 Vet. App. 183 (2002). The Board also does not find any statement by the veteran or her representative as to any dissatisfaction with recent VA examinations and evaluations, and there is no indication that there are any outstanding pertinent documents or records that have not been obtained or that are not adequately addressed by records that are contained in the claims file. Moreover, the record reflects that the veteran has been furnished with the applicable law and regulations. Finally, since the Board has determined that the veteran is entitled to a 100 percent schedular rating for bronchial asthma, any failure to notify or develop under the VCAA can not be considered prejudicial to the veteran. Accordingly, the Board finds that additional notice and/or development in this matter is not required under the VCAA. Following the revision of the rating criteria on October 7, 1996, Diagnostic Code 6602 still relates to bronchial asthma and provides for a 60 percent evaluation for forced expiratory volume in one second (FEV-1) of 40 to 55 percent predicted, or; FEV-1/forced vital capacity (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. 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; required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno- suppressive medications warrant an evaluation of 100 percent. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2002). The history of this disability shows that the veteran was originally granted service connection for bronchial asthma and assigned a 10 percent evaluation by a rating decision in January 1974, based on service medical records and VA medical examination. Following a temporary 100 percent rating for a hospitalization in April and May 1978, a June 1979 rating decision increased the rating for this disability to 30 percent, effective from April 20, 1978. Thereafter, following another temporary 100 percent rating for a hospitalization in October 1979, the 30 percent rating was reassigned effective from November 1, 1979, and continued at that level until an October 1998 Board decision increased the evaluation for the veteran's bronchial asthma to 60 percent. The Board noted that while examination in April 1995 had revealed findings consistent with a 30 percent rating, FEV-1 findings from before and after April 1995 (including those obtained during a hospitalization in November 1997) justified a higher evaluation. Following the Board's decision in October 1998, a November 1998 rating decision assigned the 60 percent evaluation, effective from January 1, 1994. VA medical examination in July 1999 revealed that the veteran reported the use of a Proventil inhaler, Proventil updrafts at home, Slo-bid, Lasix and Premarin. The veteran further reported that she developed fungal infection of the lung, and that this was first diagnosed sometime between 1993 and 1994. She asserted that this condition did not resolve with medication and was still evident on X-rays. She also continued to complain of dyspnea and could not describe the difference between her fungal infection symptoms and those attributed to her asthma. She did indicate the continuation of problems with her asthma, noting that she avoided going to the hospital by using the nebulizer machine at home. She reported asthma attacks at the rate of approximately five per month increasing to ten during the summer months. Typical symptoms included dyspnea, heaviness of chest, and wheezing. The veteran believed that her fungal infection was affecting her asthma. She maintained that she was unable to work without her inhalers and nebulizer. Physical examination revealed that there was no acute respiratory distress and that the lungs were clear to auscultation. There was also no wheezing. Spirometric evaluation at this time revealed pre-medicated and post- medicated FVC at 68 and 62 percent of predicted, respectively, pre-medicated and post-medicated FEV-1 at 39 and 54 percent of predicted, respectively, the best pre- medicated FEV-1/FVC at 48 percent, and the best post- medicated FEC-1/FVC at 72 percent. The examiner noted that there was a severe obstructive lung defect, confirmed by a decrease in the flow rate at peak flow and flow at 25, 50, and 75 percent of the flow volume curve. The examiner also noted a mild decrease in the diffusing capacity, indicating the volume extrapolation/FEV-1 changed by 38 percent, and that forced expiratory flow (FEF) was changed by 65 percent in response to the use of a bronchodilator. The diagnosis was history of asthma with no indication of fungal infection at this time. VA outpatient records from August 1999 to March 2000 reflect assessments that included asthma, and that the veteran was using a nebulizer on a daily basis. The subject claim for increased rating was filed in July 2000, at which time the veteran submitted medical evidence which she contended justified a rating for bronchial asthma in excess of 60 percent. These primarily consisted of private medical records for the period of November 1999 to May 2000. Private treatment records from February 2000 note that the veteran complained of worsening asthma symptoms. These included dyspnea and wheezing, and it was noted that she was using a steroid and albuterol inhaler in addition to inhaled steroids. Examination of the lungs revealed scattered wheezes and that respiration exhibited a prolonged expiratory phase. February 2000 chest X-rays were interpreted to reveal no acute pulmonary disease. The assessment was asthma. A private medical report from Dr. T., dated in March 2000, reflects Dr. T.'s opinion that the veteran had a very significant pulmonary obstruction, noting that when he initially saw the veteran in 1997, she had experienced respiratory arrest in an old downtown hospital. Dr. T. indicated his intention to place the veteran on a short course of steroids which may have to be continued in view of her severe disease. A consultation record from the same date reflects that pulmonary function evaluation was done with good effort and revealed severely reduced FEV-1 and ventilatory capacity. Diffusion was also noted to be mildly reduced. Spirometric findings further included pre-medicated FVC at 47 percent of predicted, pre- medicated FEV-1 at 36 percent of predicted, and FEV-1/FVC at 58 percent. These results were found to be compatible with severe obstructive lung disease and the assessment was asthma. The veteran was placed on two weeks of Prednisone in addition to her other medications. A private medical record from April 2000 reflects a diagnosis of obstructive lung disease-asthma. Her medications consisted of Serevent, 2 puffs twice daily, Flovent, 4 puffs twice daily, Proventil updraft, four times daily, Theophylline, 200 milligrams twice daily, Potassium chloride, 10 milliequivalent daily, Lasix, 20 milligrams daily as occasion requires, and Singulair, 10 milligrams at bedtime. It was noted that the veteran was doing much better and that her medications would be continued. VA respiratory examination in November 2000 revealed that the veteran continued to complain of worsening dyspnea and wheezing. She further indicated that she used her nebulizer on a daily basis and had not had a severe asthma attack since 1997. Physical examination revealed that the veteran had experienced a 40 pound weight gain over the previous year. Auscultation of the lungs indicated clear lung fields bilaterally, and there was no rhonchi, wheezes or rales. Inspiratory to expiratory phase of respiration was indicated to be normal. The diagnosis was obstructive lung disease. November 2000 spirometric findings included pre-medicated and post-medicated FVC at 72 and 78 percent of predicted, respectively, pre-medicated and post-medicated FEV-1 at 66 and 67 percent of predicted, respectively. Pre-medicated FEV-1/FVC was at 75 percent, and post-medicated was at 73 percent. The examiner commented that the veteran had a mild obstructive lung defect, noting that this was confirmed by the decrease in flow rate at peak flow and flow at 25, 50, and 75 percent of the flow volume curve. The examiner also noted a moderate decrease in diffusing capacity, which was interpreted as an insignificant response to the bronchodilator. VA outpatient treatment records from June 2001 indicate that the veteran continued to complain of dyspnea and that she had been on oral steroids for the previous 6 to 7 years. The assessment was stable bronchial asthma with medications, including Serevent, Singulair, Flovent, Ventolin, nebulizer and inhalers. At the veteran's hearing before a member of the Board in September 2002, the veteran testified how her asthma affected various activities, including sleep, cleaning, and using stairs (transcript (T.) at pp. 2-5). She also experienced wheezing on a regular basis that would require her to use the inhaler and sometimes attacks would occur without exertion (T. at p. 5). The last one was about two and a half weeks earlier (T. at p. 5). The veteran noted that it was not necessary for her to go to the emergency room when an attack came on, indicating that she was usually able to take care of it with her nebulizer (T. at pp. 5-6). The veteran's bronchial asthma has been evaluated as 60 percent disabling pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6602, under the "new" criteria for respiratory disorders. The "new" rating criteria for respiratory disorders took effect on October 7, 1996. As the veteran's claim for an increased evaluation for bronchial asthma was filed in July 2000, the evaluation of the veteran's bronchial asthma will be based on consideration of only the "new" criteria. The Board has considered the "new" criteria as to the veteran's bronchial asthma, and first notes that it provides alternatively for a 100 percent evaluation for asthma manifested by 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; required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications, and while the evidence of record at no time supports a finding of FEV-1/FVC of less than 40 percent, there is insufficient evidence to support the conclusion that the veteran has experienced more than one attack per week with episodes of respiratory failure, and it is not clear that the veteran's medications have included the daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications, the Board has noted that spirometric evaluation in July 1999 and March 2000 demonstrates FEV-1 findings warranting entitlement to a 100 percent rating under Diagnostic Code 6602. More specifically, VA spirometric evaluation in July 1999 revealed pre-medicated FEV-1 at 39 percent of predicted and private spirometric evaluation in March 2000 revealed pre-medicated FEV-1 at 36 percent, and while the most recent VA spirometry indicated pre-medicated FEV-1 of 66 percent, giving the veteran the benefit of the doubt, the Board finds that the previous FEV-1 findings of less than 40 percent satisfy the first alternative criterion required for a 100 percent evaluation under 38 C.F.R. § 4.97, Diagnostic Code 6602, i.e., FEV-1 of less than 40 percent predicted. Consequently, the Board finds that entitlement to a 100 percent rating for bronchial asthma is warranted. ORDER Entitlement to a 100 percent evaluation for bronchial asthma is granted, subject to the legal criteria governing payment of monetary benefits. John E. Ormond, Jr. Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.