Citation Nr: 0518105 Decision Date: 07/01/05 Archive Date: 07/14/05 DOCKET NO. 04-30 317 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to an increased evaluation for the service- connected bronchial asthma, currently evaluated as 60 percent disabling. 2. Entitlement to a total rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M.S. Lane, Counsel INTRODUCTION The veteran served on active duty from February 1983 to May 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision by the RO. In April 2005, the veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims folder. The issue of entitlement to a TDIU rating is addressed in the REMAND portion of the decision below and is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will undertaken to notify the veteran if further action is required on his part in connection with this matter. FINDING OF FACT The service-connected bronchial asthma is not shown to be manifested by FEV-1 less than 40-percent predicted, FEV-1/FVC less than 40 percent, or more than one attack per week with episodes of respiratory failure; and it has not been shown to have been treated with daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. CONCLUSION OF LAW The criteria for the assignment of a disability rating in excess of 60 percent for the service-connected bronchial asthma have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West. 2002); 38 C.F.R. §§ 4.7, 4.97 including Diagnostic Code 6602 (2004). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matter The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-2097 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002). The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes an evidence development letter dated in June 2003 in which the RO advised the appellant of the type of evidence needed to substantiate his claims. In this letter, the RO also advised the appellant of his and VA's responsibilities under VCAA, to include what evidence should be provided by his and what evidence should be provided by VA. The appellant was also advised to identify any additional evidence that he believed might be relevant to his claim and what VA would do to assist him in the development of his claim. The Board notes that this letter was issued to the veteran prior to the initial adjudication of his claims in the December 2003 rating decision. Furthermore, the Board finds that, to the extent possible, all obtainable evidence identified by the appellant has been obtained and associated with the claims folder and that he has not identified any other pertinent evidence, not already of record, which would need to be obtained for an equitable disposition of this appeal. In this regard, the Board notes that the RO obtained the veteran's VA treatment records, and arranged for him to undergo a VA examination in December 2003 for the purpose of determining the nature and etiology of the claimed lung disability. Therefore, the Board finds that VA has fully satisfied the requirements of the VCAA by apprising him as to the evidence needed, and in assisting him in the development of his claim. 38 U.S.C.A. §§ 5103 and 5103A (West 2002). Analysis The veteran is seeking an increased disability rating for his service-connected bronchial asthma. During his April 2005 videoconference hearing, the veteran essentially contended that the impairment caused by his asthma was more severe than is contemplated by the 60 percent disability rating currently assigned under Diagnostic Code (DC) 6602. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2004). The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran's service-connected bronchial asthma has been evaluated as 60 percent disabling using criteria set forth at 38 C.F.R. § 4.97, DC 6602. Under this code, a 60 percent rating for bronchial asthma requires FEV-1 of 40- to 55- percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating requires 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 immune-suppressive medications. 38 C.F.R. § 4.97, DC 6602. In a June 2003 decision, the Board denied entitlement to an evaluation in excess of 60 percent for the veteran's service- connected bronchial asthma. Thereafter, he filed a new claim for an increased rating with the RO. The RO subsequently arranged for the veteran to undergo a VA respiratory examination in December 2003. The report of this examination was obtained and associated with the claims folder. The RO also obtained copies of the veteran's VA treatment records. Having reviewed the complete record, the Board finds that the preponderance of the evidence is against granting an increased evaluation for the veteran's service-connected bronchial asthma. In reaching this conclusion, the Board found the most probative evidence of record to be the report of the December 2003 VA exam and the records of VA treatment received since January 2004. In the report of that examination, it was noted that the veteran reported experiencing chronic dyspnea on exertion with frequent asthmatic attacks that can occur two to three times a day weekly, to four to five times a day weekly. He described these attacks as involving increased wheezing, an inability to catch his breathe, and a chronic productive clear cough. It was also noted that he used a CPAP machine nightly for obstructive sleep apnea. Examination of the lungs revealed increased wheezing bilaterally in all fields with rhonchi in the right lower lobe. Examination also revealed decreased breath sounds, and no crackles. Pulmonary function studies obtained in September 2003 were noted to reveal FEV-1 at 58 percent predicted, and FEV-1/FVC at 60 percent actual, 80 percent predicted, and 75 percent predicted. The examiner indicated that the veteran's current medications for asthma include Albuterol nebulizer, which he has increased from four times a day to seven times a day due to increased wheezes and shortness of breath. It was noted that he also used Flunisolide oral inhalers, two puffs, twice daily, and Albuterol metered dose inhaler, four times daily. In light of these findings, the Board concludes that the criteria for an increased rating of 100 percent under DC 6602 have not been met. In this regard, the Board notes that pulmonary function testing did not reveal FEV-1 less than 40-percent predicted or FEV-1/FVC less than 40 percent. Although the veteran has described experiencing daily asthmatic attacks during his VA examination, there is no indication in the report of that exam that these attacks include episodes of respiratory failure. The record reflects that, in January 2004, the veteran began received treatment at the VA Medical Center (MC) in West Haven, Connecticut. Although the records from this facility contain references to the veteran experiencing frequent asthma attacks, these records are negative for any indication that his attacks included episodes of respiratory failure. Furthermore, the Board recognizes that the veteran's VA treatment records reflect that he has been prescribed Advair and Flovent, which are inhaled corticosteroids, which is consistent with the veteran's testimony during his April 2005 hearing. However, there is no indication in the veteran's treatment records that he has been prescribed oral or parenteral high dose corticosteroids, as specified in DC 6602. Similarly, the record does not reveal that he has been prescribed immune-suppressive medications. In summary, the Board concludes that the preponderance of the evidence is against granting an increased rating for the service-connected disability. Accordingly, the benefit sought on appeal is denied. ORDER An increased evaluation for the service-connected bronchial asthma, currently evaluated as 60 percent disabling, is denied. REMAND The veteran is also seeking entitlement to a TDIU. He essentially contends that the service-connected bronchial asthma renders him unable to maintain employment. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2004). The veteran's service-connected bronchial asthma is rated as 60 percent disabling, which satisfies the percentage rating standards for individual unemployability benefits. However, in order to receive a total disability rating under § 4.16(a), the RO must determine that veteran's asthma renders him unemployable without regard to any impairment caused by nonservice- connected disabilities. Therefore, the Board believes that the RO should arrange for the veteran to undergo another VA examination to specifically address whether or not his service-connected asthma, and solely that disorder, prevents him from securing and maintaining substantially gainful employment consistent with his work and educational background. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the veteran in order to obtain the names and addresses of any additional health care providers (VA or non-VA) who have treated him for his asthma. After receiving this information and any necessary releases, the RO should contact the named medical providers and obtain copies of the related medical records which are not already on file. 2. Thereafter, the RO should arrange for the veteran to undergo a VA examination to ascertain the current severity of his service-connected bronchial asthma. The claims folder should be made available to the examiner for review. The examiner should furnish an opinion as to whether or not the veteran's service- connected bronchial asthma, and solely this disability, prevents him from securing and maintaining substantially gainful employment consistent with work and educational background. All clinical findings should be reported in detail. 3. After the foregoing development has been completed, the RO should adjudicate the claim of TDIU. If the decision remains adverse to the veteran, the RO should provide him and his representative with a Supplemental Statement of the Case and the opportunity to respond thereto. Then, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs