Citation Nr: 0526311 Decision Date: 09/23/05 Archive Date: 10/05/05 DOCKET NO. 98-04 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for bronchial asthma, for the period of May 31, 1996, to September 17, 2001; and in excess of 30 percent for bronchial asthma, on and after September 18, 2001. ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from August 1993 to May 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 1997 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board remanded the claim in July 2003 for additional evidentiary development, and it has now been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The veteran's bronchial asthma was productive of mild to moderate impairment from May 31, 1996, to January 19, 2001. During this period, his bronchial asthma was most closely characterized by paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several time a year with no clinical findings between attacks; FEV1 of 71 to 80 percent predicted, or; FEV1/FVC of 71 to 80 percent, and daily inhalation or oral bronchodilator therapy and/or inhalation of anti-inflammatory medication. 2. From January 19, 2001, his bronchial asthma is productive of findings that more nearly approximate severe impairment, characterized by frequent asthmatic attacks (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication precluding more than light manual labor; intermittent courses of systemic corticosteroids. 3. From January 19, 2001, the veteran's bronchial asthma has not been manifested by pronounced symptoms with very frequent asthmatic attacks, severe dyspnea on slight exertion between attacks, and marked loss of weight or other evidence of severe impairment of health; or FEV1 of less than 40 percent predicted; orFEV1/FVC of less than 40 percent; or more than one attacks per week with episodes of respiratory failure; or the requirement of daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, but no higher, for bronchial asthma from May 31, 1996, to January 19, 2001, were met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.19, 4.97, Diagnostic Code (DC) 6602 (effective prior to Oct. 7, 1996); 4.97, DC 6602 (2004). 2. The criteria for a rating of 60 percent for bronchial asthma, but no higher, were met from January 19, 2001. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.19, 4.97, DC 6602 (effective prior to Oct. 7, 1996); 4.97, DC 6602 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA: Duties to Notify and Assist The President signed into law the Veterans Claims Assistance Act of 2000 (VCAA) on November 9, 2000. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). These regulations establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits. As required by 38 U.S.C.A. § 5103(a), prior to the initial unfavorable agency of original jurisdiction (AOJ) decision, the claimant must be provided notice consistent with 38 U.S.C.A. § 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, or something to the effect that the claimant should give us everything you've got pertaining to your claim. VA satisfied this duty by means of letters to the veteran from the RO dated in March 2001 and April 2004, as well as by the discussions in the rating decisions, statement of the case, and multiple supplemental statements of the case (SSOCs). By means of these documents, the veteran was told of the requirements to obtain an increased rating, of the reasons for the denial of his claims, of his and VA's respective duties, and he was asked to provide information in his possession relevant to the claims. In addition to providing the VCAA laws and regulations, additional documents of record, to include the rating decisions of record, the SOC and SSOCs have included a summary of the evidence, all other applicable law and regulations, and a discussion of the facts of the case. Such notice sufficiently placed the veteran on notice of what evidence could be obtained by whom and advised him of his responsibilities if he wanted such evidence to be obtained by VA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Although the claims were initially denied prior to the enactment of VCAA, after passage of the VCAA, the RO sent the veteran VCAA letters in March 2001 and in April 2004 which included the VCAA laws and regulations. A VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. However, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. After receipt of the content-complying letters, first in 2001 and then again in 2004, his claims were readjudicated based upon all the evidence of record as evidenced by the SOC and SSOCs of record. There is no indication that the disposition of his claim would not have been different had he received pre-AOJ adjudicatory notice pursuant to section 5103(a) and § 3.159(b). Accordingly, any such error is nonprejudicial. See 38 U.S.C. § 7261(b)(2). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2004). The RO obtained the veteran's VA and private outpatient records. There is no indication of any relevant records that the RO failed to obtain. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004). In this case, the veteran was afforded several VA medical examinations as to the issue addressed in this decision and VA medical records dated through May 2005 were also available. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent necessary; no further assistance to the appellant in developing the facts pertinent to his claim is required to comply with the duty to assist under both the former law and the new VCAA. 38 U.S.C.A. § 5107(a), 5103 and 5103A (West 2002); 38 C.F.R. § 3.159 (2004). Increased evaluation Service medical records show that the veteran was diagnosed with asthma. Post service VA pulmonary function testing (PFT) in June 1996 showed FEV1 of 86 percent of predicted and FEV1/FVC of 104 percent of predicted. Possible early obstructive pulmonary impairment was noted. Bronchodilator therapy was administered. In July 1996, the veteran reported that he had taken the prednisone for a period of 10 months and it had been discontinued 3 months earlier. He was currently on bronchodilators, and his asthma was asymptomatic at rest but with problems upon physical activity. PFT showed improvement on bronchodilator therapy when compared to PFT in March 1996. Frequency of attacks was twice per week. VA PFT in August 1996 showed FEV1 of 75 percent of predicted and FEV1/FVC of 110 percent of predicted. Service connection for bronchial asthma was established upon rating decision in March 1997, and a 10 percent rating was assigned effective from May 31, 1996. Subsequently dated VA records from 1996-1997 show that the veteran was seen for various respiratory problems, to include an upper respiratory infection, flu-like symptoms, and congestion. His history of asthma was noted. He generally weighed in the mid 130s, although on one occasion, it was noted that he weighed 153 pounds (Nov. 1997). Private records included an April 1998 naval hospital record which reflects that the veteran weighed 140 pounds. He reported that his asthma was being treated with an inhaler which he used two to three times per week on an as needed basis. He said that he had had approximately 5 severe asthma attacks since its inception, but these incidents did not require emergency room care or the use of corticosteroids. Now, he experienced nocturnal asthma symptoms approximately ten times per month on the average. There was some fatigue. PFT revealed an FVC rating of 73 percent of predicted with a 24 percent improvement in the FEV1 after four puffs of an inhaled beta-2 agonist administered by metered dose inhaler. The examiner noted that these findings were consistent with a mild obstructive ventilatory impairment with significant improvement after inhaled beta-2 agonist which was consistent with a diagnosis of asthma. The final diagnoses include mild to moderate asthma. VA records in October 2000 and early 2001 show that the veteran was seen for asthma and another respiratory condition (allergic rhinitis). In October 2000, he weighed 149 pounds. On VA visit on January 19, 2001, it was noted that the veteran's medications included multiple nasal and oral inhalers, including Cromolyn, Vacanese, Beclomethasone, Albuterol, and others. Increased asthma was noted in May 2001. VA PFT report in September 2001 reflects that the veteran gave a history to include the development of asthma during service. He said that he initially lost about 10 pounds and now his weight fluctuated between 135 to 145 pounds. He complained of shortness of breath after walking one or two blocks and asthma attacks 3 -5 times per week. He walked a slow pace and a short distance. He experienced a loss of appetite and felt tired. He weighed 142 pounds. Examination showed no evidence of wheezing, rhonchi, or crackles. There was no evidence of clubbing, cyanosis, or edema. His medications included the use of cromolyn with good response without residual side effects. PFT showed FEV1 of 66 percent of predicted value, and FEV1/FVC of 58 percent. The assessment was mild to moderate obstruction without significant improvement post bronchodilators. Based on the results of the September 2001 PFT, the veteran's 10 percent rating for bronchial asthma was increased to 30 percent, effective from the date of the evaluation, September 18, 2001. See the RO rating determination of November 2001. Subsequently dated treatment records include a VA examination report and the result of PFT from January 2003. The veteran reported significant loss of weight in the past 24 months - about 35 pounds. He weighed 140 pounds. He reported asthma attacks of about 4 times per year. His list of medications included the continued use of cromolyn. FEV1 was 83 percent of predicted while FEV1/FVC was 78 percent. The veteran was admitted to a VA hospital on February 21, 2003, for exacerbation of asthma. He was discharged the following day. In March 5, 2003, the veteran reported 2 mild episodes of asthma since his release from the hospital. PFT conducted at that time found FEV1 of 69.1 percent and an FEV1/FVC of 73 percent. In July 2003, the Board remanded the claim for additional evidentiary development. VA records from April 2004 show a brief period of hospitalization for severe exacerbation of asthma. He reported daily asthma exacerbations up to 8 times per day. It was noted that his work as a network engineer required him to crawl in attics which were often dusty. This hospitalization was secondary to abrupt, severe asthma attack that did not respond to home bronchodilator treatment. He was treated with oxygen, medications, and nebulizer treatment. In addition to other medications, he was discharged on prednisone, 14 day taper. Outpatient treatment records show that the veteran continues to be treated with daily oral inhalation therapy. When examined by VA in early May 2004, it was noted that the veteran continued to take cromolyn and prednisone. Later that month, he continued with a dosage of prednisone, although decreased in strength since April 2004. His baseline condition was that he had no significant symptoms at rest and was able to accomplish the usual activities of daily living but avoided situations that exacerbated his asthma. VA spirometry in May 2004 reflects was noted to be suboptimal due to inconsistent patient effort. The test was found to be within normal limits and the diffusing capacity for carbon monoxide (DLCO) was within normal limits. FEV1 was 68 percent of predicted and FEV1/FVC was noted to be 81 percent of predicted. VA records in 2004 and 2005 show continued treatment for asthma. He continued on numerous medications. In May 2004, he weighed 142.5 pounds. In October 2004 he reported asthma attacks once per week. He weighed 147.3 pounds. His medications included fluticasone and montelukast. In April 2005, it was noted that his medications included the use of the steroids, fluticasone, montelukast, and prednisone. In May 2005, he experienced symptoms 1-2 times per week. There had been improvement of his frequent asthma exacerbations with the use of prednisone. A list of current medications included the continued use of fluticasone and montelukast. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2004). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (2004). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2004); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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. 38 C.F.R. § 4.7 (2004). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation 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) (2004). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002). The Board notes that in Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. Initially, the Board notes that the RO has assigned staged ratings. That is, the 10 percent evaluation assigned from May 31, 1996, was increased to 30 percent, from September 18, 2001, by rating decision in November 2001. See Fenderson, supra. The Board finds that a 30 percent rating is warranted at the time of initial service connection in May 31, 1996. And, as reported in detail below, the Board concludes that an increase of 60 percent is warranted for the veteran's bronchial asthma as of January 19, 2001. This determination, in effect results in a rating of 30 percent from May 31, 1996, to January 18, 2001, and an increased rating of 60 percent, but no higher, on and after January 19, 2001. The Board notes that the veteran's bronchial asthma is evaluated under the provisions of 38 C.F.R. § 4.97, DC 6602. The rating schedule for determining the disability evaluations for asthma were revised, effective October 7, 1996, subsequent to the veteran's filing his initial claim. Under the prior version of DC 6602, a 10 percent rating was provided for mild bronchial asthma, characterized by paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks. A 30 percent rating was provided where there was moderate bronchial asthma, characterized by rather frequent asthmatic attacks (separated only by 10-14 day intervals) with moderate dyspnea on exertion between attacks. A 60 percent rating was provided where there was severe bronchial asthma, characterized by frequent asthmatic attacks (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication precluding more than light manual labor. A 100 percent rating requires pronounced symptoms with very frequent asthmatic attacks; severe dyspnea on slight exertion between attacks, and marked loss of weight or other evidence of severe impairment of health. 38 C.F.R. § 4.97, Code 6602, effective prior to October 7, 1996. Under the current version of DC 6602, a 10 percent rating is warranted for FEV-1 of 71 to 80-percent predicted, or; FEV- 1/FVC of 71 to 80 percent, or; intermittent inhalation or oral bronchodilator therapy. A 30 percent rating is warranted for FEV-1 of 56 to 70 percent predicted, or; FEV- 1/FVC of 56 to 70 percent, or; daily inhalation or oral bronchodilator therapy, or; inhalation anti-inflammatory medication. A 60 percent rating is provided where there is 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 is warranted for FEV-1 of less than 40 percent predicted; or FEV-1/FVC of less than 40 percent; or more than one attack per week with episodes of respiratory failure; or the requirement of daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. 38 C.F.R. § 4.97, DC 6602 (2004). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) (West 2002), can be no earlier than the effective date of that change. The Board must apply only the earlier version of the regulation for the period prior to the effective date of the change. VAOPGCPREC 3-00. When applying the old or new criteria for asthma for the period from May 31, 1996, to September 17, 2001, to the current case, it is the Board's conclusion that a 30 percent rating, but no higher, is warranted from May 31, 1996, through January 18, 2001. Upon review, the Board notes that the veteran reported twice weekly attacks at the time of July 1996 VA examination and experiencing 10 nights of asthma symptoms per month in April 1998, he also noted that he had had only 5 actual severe attacks since the condition was diagnosed. Treatment records from 1996 - 1998 reflect intermittent treatment with periods of several months between visits for his symptoms as well as the daily inhalation or oral bronchodilator therapy and/or inhalation of inflammatory medication. He was seen again in October 2000 for respiratory complaints and his asthma and rhinitis were noted as was the daily inhalation or oral bronchodilator therapy and/or inhalation of inflammatory medication. It is the Board's conclusion that manifestations of service-connected bronchial asthma for the period from May 31, 1996, through January 18, 2001, more closely approximated the criteria for 30 percent as provided for in DC 6602. This is true whether considering the criteria in effect prior to or after October 7, 1996. However, during this period of time the medical records do not reflect that the veteran's symptoms met the criteria to support an evaluation in excess of 30 percent. The medical evidence does not show that there was severe bronchial asthma, characterized by frequent asthmatic attacks (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication precluding more than light manual labor; pronounced symptoms with very frequent asthmatic attacks, severe dyspnea on slight exertion between attacks, and marked loss of weight or other evidence of severe impairment of health; or 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 exacerbations; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids; more than one attack per week with episodes of respiratory failure; or the requirement of daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. Accordingly, the Board finds that the evidence supports an initial evaluation of 30 percent for bronchial asthma effective from May 31, 1996, but that the preponderance of the evidence does not support an initial evaluation in excess of 30 percent effective from May 31, 1996. An increase of his symptoms is not suggested until the veteran was seen on January 19, 2001. At that time, the Board notes that his prescribed medications included the more frequent use of corticosteroids. This was not indicated in prior medical records. Additionally, increased asthma symptoms were described in May 2001, and shortness of breath with only slight exertion was noted in September 2001. Subsequently dated records reflect that the veteran's medications since January 2001 have included the use of corticosteroids. The medical evidence reveals that as of January 19, 2001, the veteran began increased visits with a physician for required care of exacerbations including more frequent attacks with increased dyspnea on exertion, resulting in intermittent prescriptions of corticosteroid for relief of symptoms. The veteran was seen again in February 2001 and an increase in symptoms was also specifically reported in May 2001. In September 2001, shortness of breath with only slight exertion was indicated, as were 3-5 asthma attacks per week. There was also increased severity of his condition as evidenced by PFT results in September 2001. Subsequently dated records reflect that his treatment regimen now included daily inhalation, both oral and nasal, of multiple bronchodilators and anti-inflammatories and intermittent prescriptions of 14 day taper of Prednisone with notations that he has shortness of breath with any increased activity and still experiences attacks weekly. The Board's concludes that manifestations of bronchial asthma more closely approximate a 60 percent disability rating, under either the old or the new criteria, effective from January 19, 2001. This is based on the medical records, which reflect an increase of symptoms from that date as discussed above. Specifically, frequent asthmatic attacks, one or more weekly, are indicated, and there is marked dyspnea on exertion as evidenced by shortness of breath after walking only a short distance. This meets the criteria for a 60 percent rating pursuant to DC 6602, in effect prior to October 7, 1996. Similarly, the criteria for a 60 percent rating is also warranted pursuant to the criteria in effect on and after October 7, 1996, in that intermittent visits to a physician are shown that require courses of systemic corticosteroids. What is not shown from January 19, 2001, however, are rating criteria that would result in a rating in excess of 60 percent. While his asthma symptoms increased at that time, more than marked (severe) dyspnea is not demonstrated. Nor is marked loss of weight or other evidence of severe impairment of health. Clearly, the evidence includes numerous references to the fact that the veteran lost weight after his asthma was diagnosed, and it is noted that the veteran reported the loss of 35 pounds in the last two years upon exam in 2001. The evidence reflects, however, that his weight has actually remained stable in the years since service and his weight has even increased in recent years. In 1996, he weighed in the 130s. In 2004, he weighed as much as 147.3 pounds. It was also noted that he continued to work as a network engineer in 2004. Thus, even though his asthma symptoms have increased in recent years, severe impairment of health is not indicated that would warrant a rating in excess of 60 percent. Moreover, his PFT results over the years would not result in a rating in excess of 60 percent. It is also pointed out that while his symptoms do require daily use of steroids, it not indicated that his dosages are high dose as required for the total schedular disability rating. In reaching these conclusions, the Board has resolved all reasonable doubt in the veteran's favor. Lastly, the Board finds that the evidence does not show that this 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. ORDER An initial rating of 30 percent, but no higher, for bronchial asthma is warranted from May 31, 1996, through January 18, 2001. A rating of 60 percent, but no higher, is warranted for bronchial asthma from January 19, 2001. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs