Citation Nr: 0309777 Decision Date: 05/22/03 Archive Date: 05/27/03 DOCKET NO. 91-46 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased rating for bronchial asthma (BA), currently rated as 30 percent disabling. 2. Entitlement to an effective date earlier than September 26, 1996, for a total disability rating due to individual unemployability (TDIU). 3. Entitlement to an effective date earlier than September 26, 1996, for service connection for diabetes mellitus (DM) secondary to service-connected BA. 4. Entitlement to an effective date earlier than September 26, 1996, for eligibility for Dependents' Educational Assistance under 38 U.S.C. § Chapter 35 (Chapter 35). REPRESENTATION Appellant represented by: R. Edward Bates, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.L. Pine, Counsel INTRODUCTION The veteran had active service from April 1966 to February 1970. This appeal is from a March 1991 rating decision by the Department of Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office (RO), which denied an increased rating for BA. The appeal initially comprised two additional issues. In August 1996, the Board of Veterans' Appeals denied a claim for increased rating for erosive gastritis and remanded the issue of entitlement to TDIU. While the case was on remand, the RO granted secondary service connection for DM, awarded TDIU, and found entitlement to Chapter 35 benefits. The Board again remanded the matter of entitlement to increased rating for BA in November 1998. While on remand, the veteran appealed from the effective dates of the awards for DM, TDIU, and Chapter 35 benefits. The appeal is again before the Board. The matters of the effective date of service connection for diabetes mellitus and of the effective date of eligibility for Chapter 35 benefits are deferred for reasons addressed in the remand appended to this decision. FINDINGS OF FACT 1. Prior to October 7, 1996, the veteran had pronounced asthma with very frequent attacks, dyspnea on exertion between attacks, little relief from medication, and general impairment of health. 2. The veteran requires daily, high-dose corticosteroids (Prednisone) for control of asthma, and has maintained such therapy essentially uninterrupted for many years. 3. This decision authorizes a schedular 100 percent rating for bronchial asthma. 4. The veteran seeks a TDIU effective during a period for which a schedular 100 percent rating is in effect. CONCLUSIONS OF LAW 1. The schedular criteria for a 100 percent rating for bronchial asthma effective prior to October 7, 1996, are met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6602 (1996). 2. The schedular criteria for a 100 percent rating for bronchial asthma effective from October 7, 1996, are met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6602 (2002). 3. A claimant entitled to a schedular 100 percent disability rating is not simultaneously entitled to a total disability rating based on individual unemployability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16(a) (2002). 4. The claim for an earlier effective date for TDIU by the claimant, who is entitled to a 100 percent schedular rating, effectively fails to raise an error of fact or law in the decision being appealed. 38 U.S.C.A. § 7105(d)(5) (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist and to Notify The Veterans Claims Assistance Act of 2000 (VCAA) made significant changes in VA's duty to notify and assist claimants for benefits administered by the Secretary. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)) (2002). Whereas the evidence of record is sufficient to allow a complete grant of the benefits sought, any question whether VA discharged the specific duties or the intent of the VCAA is moot. II. Increased Rating for Bronchial Asthma In review of claims for increased ratings, the Board considers all of the medical evidence of record, including the appellant's relevant medical history. 38 C.F.R. § 4.1 (2001); Peyton v. Derwinski, 1 Vet. App. 282, 285 (1991); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2002), to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (2002). However, "where an increase in the disability rating is at issue, the present level of the disability is the primary concern. . . . [T]he regulations do not give past medical reports precedence over current findings." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran's BA is rated according to criteria found at 38 C.F.R. § 4.97, Diagnostic Code 6602. VA has amended the rating criteria for bronchial asthma, effective October 7, 1996, while the instant claim has been pending. See 61 Fed. Reg. 46,720 (Sep. 5. 1996). When a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the version that is more favorable to the claimant. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, the newer criteria may not apply prior to their effective date. 38 U.S.C.A. § 5110(g) (West 1991); VAOPGCPREC 3-2000. Thus, if the older rule is more beneficial to the appellant's case, it applies to the entire period under consideration, notwithstanding the later change, and if the newer rule is better, it applies from its effective date to the present. Under the new rating criteria, BA is rated 100 percent if pulmonary function testing shows 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; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medication. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2002). Under the old rating criteria, BA is rated 100 percent if BA is pronounced; asthmatic attacks very frequently 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 new rating criteria are the more beneficial for the veteran in the instant case, because they include an objective criterion for a 100 percent rating that the veteran meets. The Board will apply it from October 7, 1996. 38 U.S.C.A. § 5110(g) (West 2002). The old criteria requires more subjective interpretation by the evaluator of the evidence and, in this case, will support a 100 percent rating only by affording the veteran the benefit of the doubt as to evidence in equipoise. Thus, although the results are the same under either code, the newer is more beneficially applied in this case because the result is more certain and the older is less beneficially applied, because the result is more tenuous. The many pulmonary function test reports of record from as long ago as May 1980 to October 2002 do not show results commensurate with a rating greater than 30 percent under the new rating criteria. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2002). However, the evidence of record is replete with medical notations of prescription of Prednisone, an oral corticosteroid, with dosages varying from 5 mg to 100 mg. The VA examiner of November 2002 noted daily use of oral Prednisone, but not the current dosage. The VA examiner of March 1998 noted 60 mg per day at that time. The veteran reported several of the stigmata of Cortisone excess syndrome (Cushing's syndrome) including stomach problems, abdominal striae, etc. On VA hospitalization for observation and evaluation in November 1997, the veteran was on 15 mg per day of oral Prednisone. He was diagnosed with chronic severe BA, described as steroid dependent. He was hospitalized for about two weeks in June 1996 with an acute exacerbation of asthma. On admission, he reported several recent trips to the emergency room. He reported current use of 100 mg per day of Prednisone for the past several years. On hospitalization he required intravenous steroids. The hospital report noted that the veteran's Prednisone use could not be confirmed in available VA records. The veteran reported he had been getting the Prednisone privately by mail order. He was discharged on 60 mg per day of Prednisone to taper after 10 days to 40 mg per day. The rating criterion does not define a "high dose" of corticosteroids. The supplemental information discusses "high dose" in terms of a therapeutic dose without identifying in units per day or otherwise what that dose may be. See 61 Fed. Reg. 46,720, 23 (Sep. 5. 1996). Absent such guidance, the Board will infer from the fact of the administration of the steroid therapy that it was prescribed at a therapeutic level. Thus, looking from the present back to the effective date of the new rating criteria, the clear long-term use of corticosteroid therapy is sufficient to establish that the veteran's disability is 100 percent disabling under the criteria effective from October 7, 1996. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2002). The older criteria are more problematic. At several times in the record, the veteran reported six to eight asthma attacks a day, but the medical record does not note that frequency while hospitalized, i.e., while under observation. On the other hand, the record does reveal multiple episodes of status asthmaticus or other attacks so severe as to require emergency treatment and hospital admission, during which times the veteran required intensive therapy. This can be taken as consistent with the severe impairment of health criterion of a 100 percent rating. 38 C.F.R. § 4.97, Diagnostic Code 6602 (1996). The veteran has reported severe dyspnea on slight exertion. The record is deficient in this regard in that VA examiners have not had the veteran undertake actions identified as slight exertion for the purpose of reporting presence or absence of dyspnea. There is documentation of dyspnea in a May 1990 outpatient record. On VA examination in November 1990, the veteran was in no respiratory distress, but there was no indication he was subjected to any exertion. He was treated for a BA exacerbation in December 1990. There is documentation of tachypnea (excessive rapidity of breathing- Dorland's Illustrated Medical Dictionary 1659 (27th ed. 1988)) at rest in the emergency room on VA hospitalization in June 1996, but not shortly thereafter. During VA psychiatric hospitalization in January 1991, the veteran had no respiratory problems or cough, but he received treatment and medication for BA. He reported that he spent whole days walking around town from sunup to sundown. However, outpatient records of March, April, and June 1991 note mild respiratory difficulty, complaints of increases in asthma attacks, and complaints of inability to "do anything" because of asthma, respectively. The veteran had private hospitalization in June 1991 for diagnosed status asthmaticus. The private treatment record for December 1991, February 1992, and March 1992 show the veteran had shortness of breath and chest pain, but not the conditions that precipitated them. In April 1992, the veteran testified to having six or more asthma attacks a day, which he had treated with medicine by nebulizer. He stated that the provision of the machine for home therapy eliminated the need to seek outpatient therapy as often as he had been, which was why there were fewer records of such treatment after about February 1990. The veteran testified that the numerous medications he took afforded little or very short- term relief. On VA examination in May 1992, the examiner noted occasional use of oral Prednisone. The examiner found asthma attacks six to eight times a day and dyspnea on moderate exertion. Pulmonary function test showed mild airflow obstruction. The veteran was admitted to VA hospitalization in September 1993 for asthma exacerbation and treated with intravenous steroids. The veteran was admitted to a VA hospital status asthmaticus in April 1994, treated parenterally, and discharged after a week. Private medical records of July 1994 show shortness of breath. Subsequently in July 1994, the veteran was on 60 mg. of Prednisone per day when admitted to VA hospitalized for asthma exacerbation, possibly due to low theophyline levels. He had another private hospitalization for in October 1994, at which time he was again status asthmaticus. In a September 1994 letter, E. Rivera Rios, M.D., who had followed the veteran at Caribbean Pulmonary Society since November 1991 reported the veteran as having chronic BA and using oral steroids practically continuously since 1970, presently at 40 to 80 mg. per day, with continued daily asthma attacks despite this therapy and multiple other inhalation therapies. Dr. Rivera Rios also noted the veteran's presentation of side effects of medication including gastritis, peptic ulcer, obesity and cushingoid habitus related to chronic theophylline and steroid use. Dr. Rivera Rios reported in October 1995 that the veteran had four to five asthma attacks a day despite compliance with medication and extreme shortness of breath on minor physical exertion or upon no exertion. He reported that the veteran's nebulizer therapy had side effects including vomiting, nervousness, shakes and headaches and that the veteran must be still for up to two hours after each nebulizer treatment. In June 1996, the veteran sought VA outpatient treatment, reporting use of 100 mg. per day of Prednisone, which he was instructed to reduce to 60 mg per day. Subsequently in June 1996, he sought VA emergency treatment for an acute exacerbation of BA, reporting he has stopped taking Prednisone suddenly. He was admitted to the VA hospital three days later. In sum, the evidence of record shows continuous treatment for reported daily BA attacks. The record does not well document the frequency of attacks, but the physicians following the veteran are managing him as for that level of severity. The intensity of the medical management is persuasive as to the need for it, especially given the frequency with which the record shows the veteran is cautioned about the side effects of steroid therapy. It seems unlikely that the veteran would be provided such medications if medically contraindicated. The several side effects of medical therapy, such as Cushingoid habitus, and the number and frequency of hospitalizations comport with finding severe impairment of health. The outpatient records that show no acute distress weigh against finding severe impairment of health. At least, the evidence for and against finding severe impairment of health is balanced, and the veteran is entitled to the benefit of the doubt. 38 U.S.C.A. § 5107(b) (West 2002). The veteran reports, and several medical records corroborate, his assertions of dyspnea, although the reports vary as to the level of exertion necessary to precipitate it. The number of examinations and outpatient records that make no mention of shortness of breath gives the impression that the veteran exaggerates its extent. His report of walking around all day, made out of the context of seeking treatment for asthma or seeking compensation for asthma, is revealing in this regard. As to this rating criterion, the evidence seems in approximate equipoise, and the veteran is entitled to the benefit of the doubt. Id. Finally, giving the veteran the benefit of the doubt in the application of the rating criteria effective prior to October 7, 1996, the veteran is entitled to a 100 percent schedular rating for bronchial asthma. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6602 (1996). III. Earlier Effective Date for TDIU "The Board of Veterans' Appeals may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed." 38 U.S.C.A. § 5107(d)(5) (West 2002). "Total disability ratings for compensation may be assigned, where the schedular rating is less than total...." 38 C.F.R. § 4.16(a) (2002). No additional monetary benefit is available for total disability due to individual unemployability where the veteran has a service-connected disability rated 100-percent disabling under the rating schedule, whether the TDIU would otherwise be available for the disability rated 100-percent disabling under the rating schedule or for another disability or combination of disabilities. See VAOPGCPREC 6-99. The veteran's entitlement to TDIU arose when the an August 1998 rating decision award of service connection for diabetes mellitus secondary to his service-connected bronchial asthma resulted in satisfaction of the schedular requirements for entitlement to TDIU. See 38 C.F.R. § 4.16(a) (2002) (minimum percentage disability ratings required as predicate for RO authority to award TDIU). Had the veteran won a total disability rating for asthma under the rating schedule before he was granted service connection for diabetes mellitus, he would have been precluded from entitlement to TDIU. VAOPGCPREC 6-99. Whereas the law precludes the simultaneous award of a schedular total rating and a total rating for individual unemployability, the claim for an earlier effective date for TDIU is moot. There can be no earlier award of a benefit that has become precluded by law as the result of the collateral action in the veteran's increased rating claim. Thus, through no initial defect in the claim for an earlier effective date for TDIU, the appeal no longer alleges an error of fact or law, 38 U.S.C.A. § 7105(d)(5), and it seeks a benefit the Board cannot grant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (a claim seeking a benefit not provided by law must be terminated or denied). Under these circumstances, the Board will exercise its discretion to dismiss the appeal. ORDER A schedular rating of 100 percent for bronchial asthma is granted, subject to the regulations governing payment of monetary benefits. The appeal seeking an earlier effective date for a total disability rating due to individual unemployability is dismissed. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) made significant changes in VA's duty to notify and assist claimants for benefits administered by the Secretary. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)) (2002). VA must notify the veteran of evidence and information necessary to substantiate his/her claim and inform him/her which information and evidence, if any, he/she must provide VA and which information and evidence, if any, VA will attempt to obtain on his/her behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO took no such action regarding the claim for an earlier effective date of service connection for diabetes mellitus secondary to service-connected bronchial asthma. The Board may not cure this defect. Disabled American Veterans v. Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003). The RO must discharge VA's duty under 38 U.S.C.A. § 5103(a) (2002); 38 C.F.R. § 3.159(b) (2002). The effective date of eligibility for Dependents' Education Benefits (Chapter 35 benefits) is based on the effective date of the veteran's total disability rating. The claim for earlier effective date for Dependents' Education Benefits (Chapter 35 benefits) is thus inextricably intertwined with the effective date of the veteran's total rating. See 38 C.F.R. § 3.807 (2002). The effective date of the current entitlement to Chapter 35 benefits is based on the effective date of the award of TDIU. Whereas this decision will result in calculation of the effective date of the total schedular disability rating for bronchial asthma, the RO will recalculate the corresponding effective date of eligibility for Chapter 35 benefits. The Board defers appellate review of the issue of entitlement to earlier effective date for Chapter 35 benefits pending this recalculation. Accordingly, the case is REMANDED for the following action: 1. Notify the veteran and his attorney that they should inform the RO of any evidence that could show a claim for service connection for diabetes mellitus earlier than September 26, 1996, or other basis for an earlier effective date of service connection for diabetes mellitus. Notify the veteran and his attorney that the veteran may submit the evidence. Notify the veteran and his representative that the RO will attempt to obtain any identified federal records and, if authorized to do so, any identified records not in federal custody; include notice of the time allowed for the veteran's response. Provide forms to authorize the release of any evidence not in federal custody. Add any information or evidence obtained to the claims folder. 2. Notify the veteran and his attorney of any failure to obtain evidence VA has attempted to obtain. 3. Recalculate the effective date of eligibility for Chapter 35 benefits consistent with the schedular 100-percent disability award in this decision and notify the veteran accordingly. 4. Readjudicate the claims for earlier effective date for service connection for diabetes mellitus and for earlier effective date for Chapter 35 benefits. If either claim remains disallowed, provide the appellant and his attorney an appropriate supplemental statement of the case and an appropriate period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no further action until he is further informed. The purpose of this REMAND is to obtain additional information and to afford due process. No inference should be drawn regarding the final disposition of the claim because of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ MARJORIE A. AUER Veterans Law Judge, 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.