Citation Nr: 0301249 Decision Date: 01/22/03 Archive Date: 02/04/03 DOCKET NO. 99-09 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson Mississippi THE ISSUE Entitlement to an increased rating for bronchitis with asthma, currently rated 30 percent disabling. REPRESENTATION Appellant represented by: Mississippi Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from March 1985 to March 1989 and from December 1990 to July 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 1998 and later rating decision by the Jackson, Mississippi Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran an increased rating in excess of 10 percent, for her service-connected bronchitis with asthma. This case was previously before the Board and in August 2000 it was remanded to the VA Regional Office in Reno, Nevada, for further development as the veteran had relocated to Nevada at that time. She has since returned to Mississippi and her claims file has been returned to the agency of original jurisdiction. While this case was in remand status the RO by a rating decision dated in August 2000 increased the disability evaluation for the veteran's service-connected bronchial asthma from 10 percent to 30 percent, effective from October 1997. Because she continues to disagree with the current rating assigned, the claim for increased rating for her respiratory condition remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim remains in controversy where less than the maximum available benefit is awarded). FINDINGS OF FACT 1. The RO has notified the veteran of the evidence needed to substantiate her claim and obtained all relevant medical evidence designated by the veteran. 2. Pulmonary function testing does not show forced expiratory volume in one second (FEV-1) of 40 to 55 percent of predicted value or a ratio of FEV-1 to forced vital capacity (FVC) of between 40 to 55 percent; at least monthly visits to a physician for required care of exacerbation is not demonstrated and a course of systemic corticosteroids at least three times per year is not indicated. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for bronchial asthma have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.97, Diagnostic Code 6600-6602 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) of 2000 The Board observes that recently enacted law and its implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a); 38 C.F.R. §§ 3.102, 3.159(c)(-)(d) (2002). The new law and regulations also include new notification provisions. Specifically, they require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b). The record reflects that the veteran has received the degree of notice, which is contemplated by law. Specifically, VA provided the veteran copies of the appealed rating decision and a statement of the case and supplemental statement of the case. These documents provide notice of the law and governing regulations and the evidence needed to support a claim of entitlement to an increased evaluation for bronchial asthma and the reason for the determination made regarding the veteran's claim. In addition, in correspondence to the veteran dated June 2001 and September 2002 the veteran was notified of the provisions of the VCAA and of the information and evidence needed to grant the benefits sought and further was advised of the information that VA would attempt to obtain to support her claim and the evidence that was needed from the veteran. VA offered the veteran assistance in obtaining this evidence. Further, the record discloses that the VA has also satisfied its duty to assist the veteran in obtaining evidence necessary to substantiate her claim. Most notably, copies of the veteran's relevant VA outpatient treatment records and private treatment records have been associated with her claims file and the veteran has been provided with VA examinations, which adequately demonstrate the severity of her service-connected respiratory condition. There is no identified evidence that has not been accounted for and the veteran's representative has been given the opportunity to submit written argument. Therefore, under the circumstances VA has satisfied both its duties to notify and assist the veteran in this case. Adjudication of this appeal at this juncture poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also DelaCruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Goober, 14 Vet. App. 227 (2002). Factual Background Service medical records reflect that during the veteran's initial period of active duty she experienced increasing episodes of bronchitis, a condition which was noted to have preexisted her service, and while serving on active duty during the Persian Gulf war developed an asthmatic component to that disorder. On her initial VA examination in August 1989 the veteran reported that she had problems with shortness of breath and a bronchial cough, especially after running. She said she was treated with a Proventil inhaler and an Azmacort inhaler with only mild relief. On chest examination rhonchi on auscultation and wheezes were noted. The examiner noted that a review of the veteran's pulmonary function tests was normal and chest X-rays were also normal. Nocturnal and exercise-induced asthma was diagnosed and it was recommended that the veteran add an Intal inhaler to her current regimen. The RO granted the veteran service connection for bronchitis with asthma in a November 1991 rating decision. This disability was rated 10 percent disabling effective from July 1991 under Diagnostic Code 6600 of VA's Schedule for Rating Disabilities (Rating Schedule). Private treatment records received in July 1998 in connection with the veteran's current claim show that the veteran was seen in December 1997 by her private physician, Dale L. Wing, M.D., for problems with increased cough, congestion, and low grade fever. On physical examination it was determined the veteran was in no acute distress but to be somewhat congested. New onset bronchitis was the diagnosis and the veteran was prescribed Z-pack and advised to continue Guaifenesin with some Dextromethorphan with plenty of fluids. When seen on a follow-up examination several days later the veteran said she was not doing any better and was now having generalized myalgias. On examination it was noted that the veteran did not appear ill but had lots of coughing that was looser today than previously. Examination of her lungs revealed bilateral coarse airway sounds with some decreased breath sounds in the right base. Persistent bronchitis/sinusitis was the diagnostic assessment and the veteran was prescribed Rocephin, 1 gram intramuscular followed by Cedax, 400 milligrams a day. She was also advised to continue the Z-pack. In September 1998 the veteran presented to a private physician with a dry, hacky cough and shortness of breath that had started approximately an hour ago. It was noted that she was not able to take a deep breath without coughing and has a past medical history significant for chronic bronchitis. Examination of her lungs revealed scattered wheezes with no rhonchi and decreased air movement. Acute bronchitis was the diagnostic assessment. The veteran was prescribed Celestone, 6 milligrams intramuscular and had no reaction after 20 minutes. Albuterol inhalation treatment was also prescribed as well as Proventil HFA MDI, 2 puffs 4 times a day and as needed. On a VA examination in October 1998 the veteran reported working at a fabric company where she threads huge rolls of fabric on machines. She said while occasionally performing this task she experiences shortness of breath and has to go to the bathroom to take a break and use her inhaler. The veteran also complained of shortness of breath making beds, walking half a block and added that she really can't run at all. She says she has at least one asthma attack a day sometimes more and that her current medications included Combivent, multidose inhaler, 2 puffs qid and prn; Dyphylline, 1 po bid. On physical examination it was noted that the veteran was in no acute distress currently and that her current respirations were nonlabored. Her breath sounds bilaterally were coarse but clear. No wheezing was heard. Her respiratory effort was good. She had slightly prolonged expiration. Pulmonary function tests were ordered. The veteran's examiner commented that the veteran had been seen in September 1998 by a nurse practitioner and had been diagnosed with acute bronchitis and questionable Formaldehyde reaction, which she sometimes inhales while working with fabric. It was noted that she now wears a respirator when she works with the fabric to prevent the Formaldehyde from coming in and she is hoping that this will improve things. Asthma with episodes of frequent acute exacerbations and acute bronchitis, which currently appeared to be progressing, was the diagnostic assessment. On pulmonary function testing in November 1998 the veteran was found to have normal spirometry with findings suggestive of a poor patient effort and/or neuromuscular disorder. FEV-1 was 114 percent of predicted, prebroncodilation and FEV-1/FVC was 90 percent of predicted prebronchodilation. Private treatment records received in December 1998 show that the veteran presented to an emergency room in December 1997 with complaints of shortness of breath and was given a prescription of Flumadine. Influenza with possible anemia was the diagnostic assessment following objective and laboratory examination. The veteran was subsequently seen in May 1998 with complaints of cough and head congestion. Examination of her lungs revealed scattered rhonchi. Acute bronchitis and sinusitis was the diagnostic assessment and the veteran was provided Rocephin, 500 milligrams intramuscular, Decadron, 4 milligrams intramuscular as well as other medications to include a Zithromax Z-pack. She was subsequently seen in July 1998 with nasal congestion and a productive cough as well as a history of seasonal allergic rhinitis. Examination of the lungs revealed chest sounds to be clear but it was noted that she does have a frequent cough, which appears to be of a bronchitic nature. Seasonal allergic rhinitis with exacerbation and probable early bronchitis was the diagnostic assessments. The veteran was next seen in November 1998 for problems with chronic bronchitis and it was noted at that time to have a mild exacerbation of her condition with an examination of her lungs showing poor air exchange. She was provided an Albuterol inhaler as well as a Flovent inhaler. It was also noted that she received a Decadron 4 milligrams/8 milligram a day. In December 1999 the veteran appeared and presented testimony at a video conference hearing in Las Vegas, Nevada, before the undersigned member of the Board. The veteran testified that following her deployment to Saudi Arabia during the Persian Gulf war she started having severe breathing problems and was eventually advised by her physician not to work around cigarette smoke. She said her respiratory condition became increasingly worse and that at that time she was using two inhalers, an Albuterol inhaler and a Vanceril inhaler. She said she used a Vanceril as a maintenance inhaler and that Albuterol was supposed to be used only when needed. She described her respiratory symptoms, which included coughing and shortness of breath with exercise. She added that as a form of respiratory therapy she uses a nebulizer almost on a daily basis and that this has helped more than her use of inhalers. She also testified that her last pulmonary function test in November 1998 was not in her estimation adequate in disclosing the severity of her condition as she was only tested while sitting down. VA outpatient treatment records compiled between October 1999 and December 2000 show the veteran was being followed at a VA pulmonary clinic for complaints of asthma/bronchitis and was taking oral inhalers for her condition to include Albuterol and Flunisolide. In February 2000 she presented to a VA emergency room with complaints of heart racing. It was noted that she had been experiencing symptoms of bronchitis for approximately two days. A physical examination of her lungs revealed them to be clear to auscultation, bilaterally. An X-ray of the veteran's chest revealed the lungs to be well expanded without focal opacities. The heart size, cardiomediastinal silhouette as well as osseous and soft tissue structure were otherwise unremarkable. In May 2000 she presented to the pulmonary clinic with a history of asthma and the expressed belief that her breathing had been getting worse. It was noted that she had never been hospitalized but recently had been coughing up small amounts of greenish-yellow sputum. On physical examination the veteran was noted to be coughing but not in distress. Her chest had reduced air entry but there was no wheezing. Asthma was the primary diagnosis. Pulmonary function tests were scheduled. On pulmonary function tests in June 2000 the veteran was found to have spirometry within normal limits and diffusion capacity within normal limits. The examiner noted that this was interpreted as an insignificant response to bronchodilator. FEV-1 was 100 percent of predicted following bronchodilatation and FEV-1/FVC was 113 percent of predicted following bronchodilatation. Normal spirometry, normal lung volume and normal DLCO/VA were the diagnostic impressions. In July 2000 the veteran presented with a complaint of coughing and chest congestion for about two weeks that was not resolving. It was noted that she had been seen on several occasions that month for the same problem. On physical examination her lungs were found to be symmetrical and clear with no rhonchi, wheezes or crackles bilaterally. Asthma was the primary diagnosis and she was advised to continue her asthma medication as well as an increase in her inhaler use from two puffs to three times a day. On a VA examination in May 2002 the veteran reported that she used Albuterol as needed, Flovent metered-dose inhaler, three times a day and Zyrtec. She reported that she was diagnosed as having bronchial asthma in the early 1990's after returning from Desert Storm and that she has shortness of breath on a daily basis sometimes associated with wheezing. She said that this is precipitated by exercise and exposure to certain substance, for example detergents and also humid weather. She reported chronic cough, mostly dry and sometimes productive of clear or yellow phlegm. She said that if shortness of breath persists for more than 10 minutes she uses her inhaler which seems to help and she also reported she uses Albuterol almost daily. She said that sometimes the shortness of breath lasts only a few minutes. She denied recent oral steroid use although she said she did use oral steroids in the past. She said that sometimes she suffers from acute bronchitis, roughly twice per year and is treated with antibiotics. She said she has not been placed on bed rest because of her bronchial asthma over the past year, though her condition sometimes causes her to miss time from work. On physical examination the veteran was noted to be in no apparent distress. Examination of the chest found it to be clear to auscultation. On pulmonary function tests the veteran's FEV-1 was noted to be 111 percent of predicted and FEV- 1/FVC was reported to be 82 percent of predicted. It was further noted that the veteran demonstrated normal spirometry. Analysis The evaluation assigned for a service-connected disability is established by comparing the manifestations indicated and the recent clinical findings with the criteria in VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service- connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based as far as practical, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there's 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. The veteran's bronchial asthma is rated as 30 percent disabling under Diagnostic Code 6600-6602. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2002). The additional code is shown after a hyphen. Id. The hyphenated diagnostic code used in this case in the case that chronic bronchitis (identified by Diagnostic Code 6600) is the service- connected disease and bronchial asthma is the residual condition upon which the rating is determined. Under Diagnostic Code 6602 bronchial asthma is rated based on results of pulmonary functions tests, the required treatment, and the frequency and severity of asthmatic attacks. A 30 percent rating is assigned when forced expiratory volume in one second (FEV-1) is in the range from 56 to 70 percent of predicted value, or; the ratio of FEV-1 to forced vital capacity (FVC) is in the range from 56 through 70 percent, or; there is a need for daily inhalation or oral bronchodilator therapy, or; need of inhalational anti-inflammatory medication. A 60 percent evaluation is assigned where forced expiratory volume in one second (FEV-1) is in the range from 40 to 55 percent of predicted value, or; the ration of FEV-1 to forced vital capacity (FVC) is in the range from 40 through 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or: intermittent (at least three per year) causes a systemic (oral or parenteral) corticosteroids. A 100 percent rating is assigned for pronounced bronchial asthma where FEV-1 is less than 40 percent of predicted value, or; the ration of FEV-1 to FVC is less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; which requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunal-suppressive medications. 38 C.F.R. § 4.96, Diagnostic Code 6602. In this case none of the values disclosed as a result of pulmonary function testing indicates that the veteran warrants greater than a 30 percent evaluation for a service-connected respiratory disorder under the provisions of Diagnostic Code 6602. Furthermore, the medical records do not indicate that the veteran is seen at least monthly for required care of exacerbation of her bronchial asthma nor do the medical records indicate that the veteran has been prescribed a course of systemic (as opposed to inhaled) corticosteroids for treatment of her condition. The medical records do reflect that the veteran uses an inhaler for treatment of her bronchial asthma as anticipated by a 30 percent evaluation. In May 1998, September 1998 and November 1998 the veteran was provided intramuscular injections of corticosteroids. These injections however appear from the clinical data to be isolated uses of this medication and on one occasion was necessitated by an acute exacerbation of her condition resulting from her exposure in the workplace to Formaldehyde. The veteran has testified that she experiences shortness of breath precipitated by exercise and that she is required to use inhalers for her condition. On a recent VA examination in May 2002 she specifically denied oral steroid use and further indicated that her condition only becomes exacerbated approximately two times a year. Pulmonary function testing in May 2002 disclosed normal spirometry and physical examination revealed her lungs to be clear with no indication of any wheezing or rhonchi. In sum, demonstrated functional impairment is contemplated by the schedular evaluation now in effect and, thus, an increased evaluation for the veteran's service-connected bronchial asthma is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. Finally, pursuant to 38 C.F.R. § 3.321(b)(1), extraschedular consideration may be in order when there exists such an exceptional or unusual disability picture as render impractical the application of the regular schedular standards. In this respect, the Board notes that while the veteran has asserted that her service- connected respiratory condition sometimes causes her to miss time from work, the record reflects that the veteran continues to work on a regular basis and has an established work history of 5 years with the same employer. Thus, the record does not reflect evidence of marked interference with employment to a degree greater than that contemplated by the regular schedular standards, which are based on the average impairment of employment. See 38 C.F.R. § 4.1; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability evaluation itself is recognition that industrial capabilities are impaired). Moreover, the record reflects that while the veteran has been seen on an outpatient basis, she has not required frequent periods of hospitalization due to the service- connected disability at question. Therefore, in the absence of such factors, the Board finds that the criteria for submission for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Accordingly, 38 C.F.R. § 3.321(b)(1) does not provide an additional basis for an increased rating in excess of 30 percent for the veteran's bronchitis with asthma. ORDER An increased evaluation in excess of 30 percent for bronchitis with asthma is denied. DEBORAH W. SINGLETON 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.