Citation Nr: 0426724 Decision Date: 09/27/04 Archive Date: 10/06/04 DOCKET NO. 96-14 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an increased evaluation for bronchial asthma, currently assigned a 60 percent disability evaluation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jessica J. Wills, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 1995 rating decision of the Department of the Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied the benefit sought on appeal. The veteran, who had active service from May 1969 to May 1971, appealed that decision to BVA, and the case was referred to the Board for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's bronchial asthma is productive of daily asthmatic attacks, severe dyspnea on slight exertion, severe health impairment, and a FEV-1 less than 40 percent predicted, and has also rendered him steroid dependent. CONCLUSION OF LAW Resolving all reasonable doubt in the veteran's favor, the criteria for a 100 percent disability evaluation for bronchial asthma have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.97, Diagnostic Code 6602 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 (VCAA), which became law in November 2000. The VCAA provides, among other things, that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim for benefits under laws administered by the VA. The VCAA also requires the VA to assist the claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2003). The appellant filed his claim for an increased evaluation for bronchial asthma in January 1995. Thereafter, in a rating decision dated in June 1995, the benefits were denied. Only after those rating actions were promulgated did the AOJ, in a May 2001 letter, specifically provide notice to the claimant regarding what information and evidence is needed to substantiate a claim for an increased evaluation, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in his possession that pertains to the claim. However, the Board also notes that the record indicates that prior to that time the appellant had been apprised of what evidence would be necessary to substantiate the claim, as well as informed of the division of responsibility for obtaining such evidence. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this regard, the Board notes that the veteran had been provided with a copy of the rating decision dated in June 1995, setting forth the general requirements of the law, the evidence considered, and the reasons why his claim was denied. The general advisement and the pertinent laws and regulations, including the schedular criteria, were reiterated in a Statement of the Case dated in November 1995 as well as in Supplemental Statements of the Case dated in November 2000, June 2002, and October 2003. The Board observes that in a recent case, the United States Court of Appeals for Veterans Claims (Court) held that compliance with 38 U.S.C.A. § 5103 required that the VCAA notice requirement be accomplished prior to an initial unfavorable determination by the agency of original jurisdiction (AOJ, or RO in this case). See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, in the present case, the appellant's claim for an increased evaluation for bronchial asthma was filed and initially denied prior to VCAA notice being provided to the appellant. Nevertheless, the Court in Pelegrini II noted that such requirement did not render a rating decision promulgated prior to providing the veteran full VCAA notice void ab initio, which in turn would nullify the notice of disagreement and substantive appeal filed by the claimant. In other words, Pelegrini II specifically noted that there was no requirement that the entire rating process be reinitiated from the very beginning. Rather, the claimant should be provided VCAA notice and an appropriate amount of time to respond and proper subsequent VA process. Because the VCAA notice in this case was not provided to the appellant prior to the initial AOJ adjudication denying the claim for an increased evaluation, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. While the Court did not specify how the Secretary can properly cure a defect in the timing of the notice, it did leave open the possibility that a notice error of this kind may be non-prejudicial to a claimant. There is no basis for concluding that harmful error occurs simply because a claimant receives VCAA notice after an initial adverse adjudication. In reviewing AOJ determination on appeal, the Board is required to review the evidence of record on a de novo basis and without providing any deference to the AOJ's decision. As provided by 38 U.S.C. § 7104(a), all questions in a matter which under 38 U.S.C. § 511(a) are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary, and such final decisions are made by the Board. Because the Board makes the final decision on behalf of the Secretary with respect to claims for veterans benefits, it is entirely appropriate for the Board to consider whether the failure to provide a pre-AOJ initial adjudication constitutes harmless error, especially since an AOJ determination that is "affirmed" by the Board is subsumed by the appellate decision and becomes the single and sole decision of the Secretary in the matter under consideration. See 38 C.F.R. § 20.1104. Further, a claimant is not compelled under 38 U.S.C. § 5108 to proffer new and material evidence simply because an AOJ decision is appealed to the Board. Rather, it is only after a decision of either the AOJ or the Board becomes final that a claimant has to surmount the reopening hurdle. All the VCAA requires is that the duty to notify is satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. While the notice provided to the appellant in May 2001 was not given prior to the first AOJ adjudications of the claim, the notice was provided by the AOJ prior to the most recent transfer and certification of the appellant's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Therefore, notwithstanding Pelegrini II, to decide the appeal would not be prejudicial error to the claimant. The Court in Pelegrini II also held, in part, that a VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. As noted above, this new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). See VAOPGCPREC 01-2004. As discussed above, the Board has found that the appellant was provided every opportunity to identify and submit evidence in support of his claim. In this case, although the VCAA notice letter that was provided to the appellant does not contain the "fourth element," the Board finds the appellant was otherwise fully notified of the need to give to VA any evidence pertaining to his claim through the documents described above. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In this case, because each of the four content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the appellant covering all content requirements is harmless error. With regard to the duty to assist, the veteran's VA outpatient records have been obtained and associated with the claims file, as were his private medical records and Social Security records. Letters from his employer were also submitted. In addition, VA has conducted necessary medical inquiry in an effort to substantiate the claim. 38 U.S.C.A. § 5103A (d). The veteran was afforded VA examinations in January 2000 and September 2002. A subsequent medical opinion was obtained in September 2003 for clarification purposes. The Board finds that VA has done everything reasonably possible to assist the appellant. In the circumstances of this case, additional efforts to assist the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duties to inform and assist the appellant at every stage of this case. Given the extensive development undertaken by the RO, the Board finds that the record is ready for appellate review. Moreover, the Board notes that any deficiencies in VA compliance with the VCAA notice or development requirements are not prejudicial to the veteran by virtue of the complete grant of benefits sought on appeal as discussed below. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board therefore finds that disposition of the appellant's claim for an increased evaluation is appropriate. Background and Evidence A rating decision dated in April 1972 granted service connection for bronchial asthma and assigned a noncompensable evaluation effective from May 27, 1971. That determination was based on a review of the veteran's service medical records and VA medical records as well as on the findings of a VA general medical examination performed in August 1971. The RO confirmed the noncompensable evaluation in a March 1974 rating decision, but a September 1975 rating decision subsequently increased the assigned disability evaluation to 10 percent effective from January 9, 1974. A rating decision dated in April 1977 once again increased the evaluation to 30 percent effective from August 1974 based on the findings of a November 1976 VA examination. Numerous rating decisions confirmed the 30 percent disability evaluation. In an April 1985 rating decision, the RO subsequently assigned a temporary 100 percent disability evaluation (38 C.F.R. § 4.29) effective from April 25, 1984 and a 30 percent disability evaluation from July 1, 1984. That determination was later confirmed by a rating decision dated in October 1985. The veteran appealed the decision to BVA, and the Board remanded the case in June 1987 for further development, including additional treatment records and a VA examination. After completing the necessary development, the RO issued another rating decision in October 1986, which confirmed the 30 percent evaluation assigned for the veteran's bronchial asthma. The veteran continued his appeal to BVA, and the Board granted a 60 percent disability evaluation based on a review of the veteran's VA medical records and the findings of a September 1987 VA examination. An October 1989 rating decision assigned the 60 percent disability evaluation effective from July 1, 1984. Another rating decision dated in January 1993 continued that evaluation based on VA examinations performed in November 1992. The veteran filed another claim for an increased evaluation in January 1995, and the June 1995 rating decision now on appeal continued the 60 percent disability evaluation. During the pendency of the appeal, that evaluation has remained in effect. VA outpatient records dated from December 1993 to March 1995 document the veteran's treatment for bronchial asthma. In December 1994, the veteran was hospitalized for a bronchial asthma exacerbation manifested by respiratory distress, shortness of breath, severe bronchospasm, and wheezing. His aminophilline level was below his maintaining dose. He was initially treated with Proventil therapy, which included dosages of Aminephilline, Renastyn, and Solumedrol. Despite this therapy, the veteran did not attain the necessary aminophilline level, and his bronchospasm did not improve. Adequate levels were finally obtained after his doses were increased. The veteran was prescribed one week of rest, instructed to limit physical activity as tolerated, and given Pronentyl, Aminophilline, Prednisone, and Septa PS. In January 1995, the veteran had a pre-bronchodilator FEV-1 of 66 percent predicted and a post-bronchodilator FEV-1 of 99 percent predicted. He also had a pre-bronchodilator actual FEV-1/FVC of 64 percent and a post-bronchodilator actual FEV- 1/FVC of 74 percent. The physician concluded that the veteran had a severe airway obstruction, overinflation, and a response to bronchodilators, which were consistent with a diagnosis of asthma. He diagnosed the veteran with a severe obstructive airways disease that was the asthmatic type. The veteran continued to have occasional bronchospasms in March 1995, which occurred more often. His treatment included Prednisone, Beclonutasone (inhalation), Albuterol, Theophylline, and Ipuatropivan aerosol. VA outpatient records dated from January 1995 to April 1996 and from January 1995 to September 1997 document the veteran's treatment for his bronchial asthma. In June 1995, it was noted that the veteran had severe bronchial asthma for which he was steroid dependent and that he had been prescribed Prednisone, Proventil, Theo-Dur, and Azmacort. He had been experiencing two to three weekly episodes of bronchial asthma exacerbations. In July 1995, it was further noted that he was feeling well and denied having a fever, cough, and sputum production, but the veteran did have asthma attacks three to four times per week as well as mild diffuse wheezing over all lung fields. He also reported having more fatigue on exertion. The veteran continued to be steroid dependent and had been taking Valium, Prednisone, Azmacort, Albuterol, Theophilline, and Triamcinolone. He had a bronchial asthma exacerbation in January 1996 with increased shortness of breath and a cough. He did not have a fever, and he was not in acute distress. His medications at that time included Theo-Dur, Prednisone, Proventil, and Azmacort. The veteran was treated with Proventil and Solu Medrol and was prescribed Prednisone and Septra. He had a follow-up appointment that same month during which it was noted that his severe bronchial asthma was then fairly well controlled. His dosage of Prednisone had been gradually decreased. In March 1996, it was once again noted that the veteran had bronchial asthma and was steroid dependent. He reported that he had been doing better and that he was not in distress. The treating physician decided to decrease his dosage of Prednisone and to increase his dose of Azamacort. The veteran had another bronchial asthma exacerbation in April 1996, which was manifested by shortness of breath, wheezing, and cough. It was also noted that he had a prolonged expiratory phase and that he had had chills and a fever. A radiology diagnostic report revealed that his lungs were clear of infiltrate and well expanded. His heart was normal, and the mediastinal silhouette was unremarkable. The radiologist indicated that there was no cardiopulmonary abnormality radiographically evident. He was thereafter diagnosed with acute bronchitis and prescribed an antibiotic. These VA outpatient records also indicate that the veteran was provided a pulmonary function test in November 1996, which found a pre-bronchodilator FEV-1 of 75 percent predicted and a post-bronchodilator of 80 percent predicted. Both his pre-bronchodilator and post-bronchodilator FEV-1/FVC were recorded as 75 percent. Another pulmonary function test performed in August 1997 revealed a pre-bronchodilator FEV-1 of 58 percent predicted and a post-bronchodilator FEV-1 of 66 percent predicted. His pre-bronchodilator FEV-1/FVC was 64 percent, and his post-bronchodilator FEV-1/FVC was 69 percent. In September 1997, it was noted that the veteran's bronchial asthma required close follow-up care and that he required hospitalization in February 1997 due to acute bronchitis and an exacerbation of his bronchial asthma. His last pulmonary function test and chest x-rays, which had shown peribronchial cuffing, were consistent with severe chronic pulmonary disease, and he required all kinds of modalities of treatment to keep his symptoms partially controlled. Due to the frequency and intensity of his symptoms, the veteran was unable to retain employment. Private medical records dated from April 1995 to May 1996 show that the veteran was seen in May 1995 for his bronchial asthma during which he indicated that his asthma had worsened in the previous year. A pulmonary function test was performed, which revealed a FEV-1 of 47 percent predicted and a FEV-1 of 59 percent predicted after taking Albuterol. His FEV-1/FVC was 61.29 percent prior to his use of Albuterol and 49.71 percent following administration of the medication. He was thereafter diagnosed with mild obstructive lung dysfunction with a significant response to an acute bronchodilator challenge. He continued his prescribed treatment, including Theodur, Azmacort, Atrovent, Powered Nebulizers with Proventil, and Prednisone. The dosage of his oral steroids was increased, and the treating physician further commented that his condition seemed to be job- related. The veteran had a follow-up appointment later that same month, but did not show improvement despite the increased dosage of oral steroids. He had not returned to work since April 26, 1995, and it was recommended that he be hospitalized for optimal treatment. The veteran was later seen in June 1995 by his private physician who noted that he had been to the emergency room three weeks earlier, but did not require admission to the hospital. The veteran continued to have marked bronchospasm, but he did indicate that he was feeling somewhat better. He continued taking the same medications as well as Serevent. At another appointment later that month, the physician noted that the veteran had very mild end expiratory wheezes, but that he had improved markedly with the prescribed treatment. In August 1995, the veteran was experiencing chest tightness on various days, which he believed were secondary to the weather. He also reported being seen at a VA hospital where he was found to have bronchospasm. He denied febrile chills and phlegm production, but did have episodes of shortness of breath. He was instructed to continue taking Prednisone as well as his bronchodilators. In September 1995, the veteran again reported continuing chest tightness despite his medication. He had been sent to the emergency room a week earlier with a marked shortness of breath. The veteran told his physician that he had not improved after that treatment. He continued to have episodes of shortness of breath in September 1995, which usually resolved with respiratory therapy. It was noted in November 1995 that he felt slightly better and that he was worried since he had returned to work after a seven-month absence. In January 1996, the veteran indicated that he had been to the emergency room one week earlier and that he continued to experience chest tightness and shortness of breath. It was also noted that he had been retired by his employer due to his bronchial asthma. The veteran reported feeling much better in March 1996, but he did have episodes of chest tightness. He also told his physician that he was seen at a VA hospital and that his dosage of Aminophylline was changed from Theodur to Uniphyl because of an apparent increase in his Serum Theophylline levels. The physician noted that he had moderate bronchial asthma and that he needed to maintain the Uniphyl as well as his other prescribed medications, including Prednisone. The private medical records also show that he reported having frequent episodes of chest discomfort in April 1996, which improved slightly with a powered nebulizer. He also indicated that he had been to the emergency room two weeks earlier, but that he had not been hospitalized. Despite bronchodilator treatment the veteran, continued to have bronchospasm. The physician commented that powered nebulizers needed to be given at least every six hours and occasionally every four hours. In May 1996, the veteran indicated he was feeling about the same. He continued to have shortness of breath and to use the medications as prescribed. The physician noted that the veteran had been mostly bronchospasm despite excellent medication and commented that he had moderate to severe bronchial asthma, which improved mildly with treatment. He further commented that the veteran was a steroid dependant asthmatic and needed to continue with this treatment. The veteran was afforded a VA trachea and bronchi examination in May 1995 for an evaluation of his pulmonary disease. The veteran told the examiner that he had three to five asthma attacks per week, which consisted of shortness of breath, chest tightness, and audible wheezing. These attacks were relieved mildly and temporarily by medications. The examiner noted that his treatment included Atrovent, Asthmacort, Prednisone, Theo-Dur, and Proventil. The veteran also reported that his asthma attacks were more frequent and more severe than one year earlier and that the attacks affected his work performance and produced frequent absences. A physical examination revealed symmetrical chest expansion and bilateral inspiratory and expiratory wheezing in all lung fields. There was also a prolonged expiratory phase and occasional expiratory bronchi. There was no history of a productive cough and no indication of cor pulmonale, cyanosis, or clubbing extremities. The results of a pulmonary function test indicated a prebronchiodilator FEV-1 of 60 percent predicted and a post-bronchodilator of 59 percent predicted. Both his pre-bronchodilator FEV-1/FVC and post-bronchodilator FEV-1/FVC were 67 percent. The physician noted that the veteran had a moderate obstructive ventilatory defect without response to inhaled bronchodilators. There was air trapping and acute respiratory alkalosis as well as relative hepoxemia for his age. No significant changes were found when compared to the previous study performed in May 1995. The veteran did complain of dyspnea on mild exertion. He was diagnosed as having bronchial asthma with abnormal pulmonary function tests. VA outpatient records dated in May 1995 include the findings of a pulmonary function test. The results indicate that the veteran had a pre-bronchodilator FEV-1of 49 percent predicted and a post-bronchodilator FEV-1 of 72 percent predicted. His pre-bronchodilator FEV-1/FVC was 58 percent, and his post- bronchodilator FEV-1/FVC was 68 percent. The examiner commented that the veteran had a moderate obstructive airways disease with an excellent response to bronchodilators. He also noted that there was severe hyperventilation and severe airtrapping. The arterial blood gases showed acute respiratory alkalosis and increased (alveolar arterial) oxygen gradient. Private medical records show that the veteran was provided another pulmonary function test in December 1995. The results indicated a moderate decrease in flow rates with some response to inhaled bronchodilators. The lung volumes were within normal limits, but the diffusion capacity was severely decreased. The pneumologist listed his impression as moderate obstructive dysfunction with some response after inhaled bronchodilators. In a January 1996 letter, the veteran's employer indicated that a doctor had recommended that he retire due to a total and permanent disability due to his physical condition. As a result, he retired that same month. Private medical records dated from January 1996 to December 1996 indicate that that the veteran continued to have daily bronchospasms in spite of treatment and that the pneumologist considered his lung damage to be totally and permanently disabling because of his bronchial asthma-chronic rinopharyngitis condition related to work. The Commonwealth of Puerto Rico Department of Transportation and Public Works sent the veteran a letter in July 1996 indicating that a Medical Assessors Board had found that his health condition did not allow him to drive a motorized vehicle with a guarantee of his safety and that of others. As a result, his license was revoked. The veteran was afforded another VA trachea and bronchi examination in October 1996 for an evaluation of his bronchial asthma. The veteran complained of daily attacks, and his medications included Proventil, Asmacort, Uniphyl, and Prednisone. The veteran claimed that he had been pulled from his work because of his frequent asthmatic attacks and absences, and as a result, the State Insurance Fund had granted him a pension. A physical examination revealed a prolonged expiratory phase with scanty wheezes at the end of inspiration and diffuse bronchi in both lungs. There was no evidence of cor pulmonaries, cyanosis, clubbing, or recent infection. The veteran did have a chronic cough, which was mostly dry with scanty white sputum, and there was moderate dyspnea on efforts. A pulmonary function test showed moderate obstruction unresponsive to bronchodilators with air trappings. Studies remained essentially unchanged since May 1995. The examiner diagnosed him with bronchial asthma, which kept him from being employed at his regular job. A private medical record dated in August 1997 diagnosed the veteran with bronchial asthma with severe obstruction in the airways with very little reversibility of the process with bronchodilators. His prognosis was considered poor. A September 1997 decision by the Social Security Administration found that the veteran was entitled to disability benefits due to the severity of his bronchial asthma. In this decision, it was noted that he was steroid dependent and that he was unable to engage in any substantially gainful employment. A November 1997 letter from the Administrator of the State Insurance Fund related that the socio-economic committee had granted the veteran a total and permanent disability with the diagnosis of bronchial asthma. VA outpatient records dated from November 1997 to November 2000 indicate that the veteran was hospitalized in January 1999 with a history of shortness of breath and wheezing despite nebulizer treatment at home. It was noted that he had been receiving treatment at the facility for chronic obstructive airway disease, which included methylxanrhines, steroids, beta agonist, and Atrovent. The veteran had a good response to treatment in the emergency room and was then hospitalized with a treatment plan that included intravenous steroids, beta agnosit, and oral xanthines. If he did not have a good response, intravenous xanthines were to be considered. In December 1999, it was noted that his condition was deteriorating and that he could not perform most of his daily activities. The veteran continued to be steroid dependent in January 2000, and he was switched to Pulmicort. In May 2000, it was noted that the veteran had made eight visits to the emergency room in the previous two months and that he was steroid dependent. In August 2000, his asthma was considered active, but stable, and it was determined that an attempt would be made to decrease his steroids. VA hospital records dated from November 1997 to December 1997 show that he was admitted to the hospital with a diagnosis of status asthmatics and acute bronchitis. He was treated with Proventil, intravenous steroids, Theophylline, and antibiotics. During his hospitalization, he did not present with any other exacerbations of his asthma. Although he continued to have expiratory and inspiratory wheezing, the veteran was discharged without hypoxemia or respiratory distress. He was switched to oral steroids and the dosage was to be gradually decreased. VA hospital records dated from January 1999 to February 1999 show that he was hospitalized during that time period due to shortness of breath and asthma exacerbation. He was treated with intravenous steroids referred to as Solumedrol as well as Uniphyl, Albuterol, and Atrovent. He responded well to the therapy and was thereafter taken off the intravenous steroids and prescribed Prednisone in decreasing dosages. VA hospital records dated from September 1999 to October 1999 document that the veteran was once again admitted for an acute asthma exacerbation, which had been previously treated with oral nebulization and inhaler without any improvement. During his hospitalization, he was treated with an Aminophylline drip, intravenous steroids, and frequent nebulization therapy with Proventil and Atrovent. He was discharged with a tapering dosage of Prednisone, oral antibiotics, and nebulization therapy. The veteran submitted a statement in March 2000 claiming that the severity and persistency of his bronchial asthma prevented him from securing and engaging in any gainful occupation. The veteran was afforded a VA respiratory examination in January 2000 during which it was noted that the veteran had multiple visits to the emergency room due to asthma exacerbations. He told the examiner that he had multiple admissions to the hospital, as he had been hospitalized approximately three times in the previous year. He claimed that his asthma had worsened in the previous five years, required more medication, and decreased his exercise tolerance. He complained of dyspnea on exertion on mild efforts, as demonstrated by his use of an Albuterol inhaler prior to climbing stairs. He had a dry cough with some production as well as an asthma attack on a daily basis, but he denied hemoptysis or anorexia. The examiner noted that the veteran was no longer working and that his medications included Pulmicort, Flovent, Uniphyl, Albuterol, Ipratropium, Intal, and Prednisone. A physical examination revealed bilateral expiratory wheezes in all lung fields with a prolonged expiratory phase. There was no history of weight change. Pulmonary function tests recorded a pre- bronchodilator FEV-1 of 64 percent predicted and a post- bronchodilator FEV-1 of 70 percent predicted. His pre- bronchodilator FEV-1/FVC was 61 percent, and his post- bronchodilator FEV-1/FVC was 66 percent. He was diagnosed with severe asthma and was described as steroid dependent. VA outpatient records dated in May 2000 indicate that the veteran had additional pulmonary function tests, which revealed a pre-bronchodilator FEV-1 of 47 percent predicted and a post-bronchodilator FEV-1 of 48 percent predicted. His pre-bronchodilator FEV-1/FVC was 61 percent, and his post- bronchodilator FEV-1/FVC was 59 percent. These results were interpreted as severe obstructive ventilatory impairment. VA outpatient records dated from January 2001 to June 2002 document the veteran's treatment for various disorders, including his bronchial asthma. The veteran was admitted to the hospital in July 2001 due to increased shortness of breath and wheezing without productive cough or fever. He was not in acute stress, but did have a prolonged expiratory phase and expiratory wheezing. He was thereafter diagnosed with an exacerbation of bronchial asthma for which he was treated with intravenous steroids. His condition improved with steroid therapy as well as with respiratory therapy involving Albuterol. The use of intravenous steroids was discontinued, and he was started on Prednisone. His doses of Hydrochlorothiazide and Levothyroxine were increased at discharge. The veteran was admitted again in October 2001 due to shortness of breath and dry cough. He had been experiencing inspiratory and expiratory wheezing as well as a prolonged respiratory phase. His treatment included intravenous steroids and was thereafter discharged with instructions to continue respiratory therapy. The veteran complained of worsening dyspnea in May 2002, and he was admitted with an exacerbation of chronic pulmonary disease. He was treated with intravenous steroids, antibiotics, and bronchodilators. He returned to the emergency room in June 2002 with shortness of breath and was treated with intravenous steroids. The veteran reported feeling much better in June 2002 with mild fatigue. VA outpatient records dated in May 2001 note that the veteran was being treated with Combivent, Flonase, Prednisone, and Singulair and that he was severely limited on exertion due to the development of cough, shortness of breath, and fatigue. His condition had deteriorated over the four previous years, and he was unable to be weaned off oral steroids. A pulmonary function test found his FEV-1 to be 38 percent predicted and his FEV-1/FVC to be 62 percent. After using a bronchodilator, his FEV-1 was 38.5 percent predicted and his FEV-1/FVC was 59 percent. The veteran was provided a VA respiratory examination in September 2002 during which it was noted that he had recurrent bouts of chest tightness, coughing, wheezing, dyspnea, and progressing instability and frequency. He experienced asthma attacks on a daily basis and had dyspnea on mild to moderate efforts. A cough was present, which was mostly dry without sputum production. There was no history of hemoptysis or anorexia, nor were periods of incapacitation noted. His medications included Prednisone, Combivent, Nasalide, Lasix, and Singulair. A physical examination revealed bilateral rhonchi with late expiratory wheezing. There was no evidence of cor pulmonale, right ventricular hypertrophy, or pulmonary hypertension. Nor was there any evidence of recent weight loss or gain or of restrictive disease. A pulmonary function test recorded the veteran's FEV-1 as 33.6 percent predicted and his FEV-1/FVC as 58 percent. After using a bronchodilator, these values were 46.3 percent predicted and 66 percent, respectively. VA outpatient records dated in September 2002 show that another pulmonary function test noted a FEV-1 of 42 percent predicted and a FEV-1/FVC of 58 percent. Following the use of a bronchodilator, the values were 58 percent predicted and 65 percent, respectively. A medical opinion was obtained in September 2003 to clarify the discrepancies found between the two pulmonary function tests performed in September 2002. The examiner indicated that the correct report was the official and original report, which established values a pre-bronchodilator FEV-1 of 42 percent predicted and a post-bronchodilator FEV-1 of 58 percent. The examiner explained that the reason for the discrepancies was that the pulmonary function test machine used correct and updated standards whereas the computerized patient records used outdated standards. Law and Analysis The veteran contends that the current evaluation assigned for his bronchial asthma does not accurately reflect the severity of the disability. He maintains that the symptomatology associated with this disorder warrants an evaluation in excess of 60 percent. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the schedule for rating disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions and civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Ratings shall be based as far as practicable, upon the average impairment of earning capacity with the additional provision that the Secretary of Veterans Affairs shall from time to time readjust the Schedule of Ratings in accordance with experience. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be assigned commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The veteran's bronchial asthma has been assigned a 60 percent evaluation pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6602. The Board notes that during the pendency of this appeal, VA issued new schedular criteria for rating bronchial asthma under 38 C.F.R. § 4.97, Diagnostic Code 6602, which became effective October 7, 1996. However, the Board notes that consideration under the revised schedular criteria may not be undertaken before such criteria became effective. The effective date rule contained in 38 U.S.C.A. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. That is, for any date prior to October 7, 1996, neither the RO nor the Board could apply the revised rating schedule. Under the version of Diagnostic Code 6602 applicable prior to October 7, 1996, a 60 percent disability evaluation is warranted for severe bronchial asthma manifested by frequent attacks of asthma (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication, and more than light manual labor precluded. A 100 percent evaluation is assigned for pronounced bronchial asthma manifested by 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. The new regulations that became effective on October 7, 1996 revised the schedular criteria for the rating of bronchial asthma. See 38 C.F.R. § 4.97, Diagnostic Code 6602. The revised criteria provide that a 60 percent is warranted when there is a FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, at least monthly visits to a physician for required care of exacerbation, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is contemplated when there is a FEV-1 less than 40 percent predicted, FEV-1/FVC less than 40 percent, more than one attack per week with episodes of respiratory failure, or required daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. When the evidence in this case is considered under the old schedular criteria of Diagnostic Code 6602 as set forth above, the Board finds that an increased evaluation is warranted. The Board acknowledges that the veteran has not been shown to have marked weight loss. However, numerous treatment records indicate that he has asthma attacks on a daily basis, and a September 2002 VA examination report noted that he had recurrent bouts of chest tightness, coughing, wheezing, dyspnea, and progressing instability and frequency. Additionally, the Board observes that VA examinations performed in May 1995 and January 2000 reported complaints of dyspnea on mild exertion, which was demonstrated by his use of an inhaler prior to climbing stairs. VA outpatient records dated in May 2001 also noted that he was severely limited on exertion due to the development of cough, shortness of breath, and fatigue. Further, the Board observes that VA outpatient records dated in December 1999 indicate that the veteran's condition was deteriorating and that he could not perform most of his daily activities. In fact, the Board notes that the veteran has made numerous visits to the emergency room and has been admitted to the hospital on many occasions. Thus, the evidence of record shows the veteran to have frequent asthma attacks, severe dyspnea on slight exertion, and other severe health impairment. Therefore, the Board is of the opinion that the evidence shows the veteran's disability to more nearly approximate the criteria for a 100 percent evaluation in effect prior to October 7, 1996. When the evidence of record is considered under the revised rating criteria, the Board is once again of the opinion that veteran is entitled to an increased evaluation for his bronchial asthma. The Board acknowledges that many of the veteran's pulmonary function tests, including the most recent results, do not meet the criteria for an increased evaluation. However, the Board notes that VA outpatient records dated in May 2001 show that the veteran had a pre- bronchodilator FEV-1 of 38 percent predicted and a post- bronchodilator FEV-1 of 38.5 percent. In addition, the Board observes that the veteran's numerous medical records indicate that he has daily asthma attacks and is considered steroid dependent. In this regard, the Board notes that the veteran has been prescribed numerous medications, including oral steroids, and that he has also been treated with intravenous steroids on multiple occasions. Therefore, the Board also finds the veteran's disability to more nearly approximate the criteria for a 100 percent evaluation under the revised rating schedule. Further, although the veteran's symptomatology does not meet all of the criteria contemplated under the old or revised rating criteria for a 100 percent disability evaluation, the Board also notes that that he was terminated by his employer based upon a medical finding that he was totally and permanently disabled. Additionally, the Board observes that the veteran had his license revoked by the Puerto Rico Department of Transportation and Public Works and has been granted disability benefits by the Social Security Administration. Moreover, applicable regulations do not require that all of the criteria for the next higher disability evaluation be met. As noted above, 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 for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Further, any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. As such and with consideration of 38 C.F.R. § 4.7 and 38 C.F.R. § 4.3, the Board concludes that a 100 percent evaluation for bronchial asthma is established. ORDER Subject to the provisions governing the award of monetary benefits, a 100 percent disability evaluation for bronchial asthma is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2