Citation Nr: 0526366 Decision Date: 09/26/05 Archive Date: 10/05/05 DOCKET NO. 03-02 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased rating for bronchial asthma, currently rated as 60 percent disabling. ATTORNEY FOR THE BOARD S. Barial, Associate Counsel INTRODUCTION The veteran had active military service from October 1961 to September 1964 and February 1966 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) from an October 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied an increased rating for bronchial asthma, currently rated as 60 percent disabling; and denied entitlement to TDIU. The RO subsequently granted entitlement to TDIU in May 2005, which is considered a total grant of benefits. Accordingly, this issue is no longer on appeal and is not addressed in this decision. The veteran requested a Board hearing on his VA Form-9, but later withdrew the request in February 2003. The Board remanded this case in December 2003 for additional development, which subsequently was accomplished. Thus, this case is properly before the Board. In January 2004, the veteran filed a service connection claim for sleep apnea as secondary to service-connected bronchial asthma. The RO has deferred this issue; as such, the Board refers this issue to the RO. FINDINGS OF FACT The veteran's service-connected bronchial asthma is manifested by findings of daily and weekly asthma attacks requiring some emergency room treatment and bedrest; Pulmonary Function Tests in January 2004 showing FEV-1 values of 30.8% of the predicted value; daily use of corticosteroids; and other factors noted to contribute to ventilation restriction, versus restrictive lung disease. CONCLUSION OF LAW The criteria for a 100 percent evaluation for bronchial asthma have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6602 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004) redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to most claims for benefits received by VA on or after November 9, 2000, as well as any claim not decided as of that date. 38 C.F.R. § 3.159 (2004). The United States Court of Appeals for Veteran Claims (CAVC) in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and that the 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, or something to the effect that the claimant should provide any evidence in his possession pertaining to the claim. The Board, however, is satisfied that all necessary development pertaining to the issue of an increased rating for bronchial asthma has been properly undertaken. The Board is confident in this assessment because the evidence as presently constituted is sufficient in establishing a full grant of the benefit sought on appeal. Therefore, any outstanding development not already conducted by VA is without prejudice; hence, any deficiencies in the duties to notify and to assist constitute harmless error. Analysis The RO originally granted service connection for bronchial asthma in January 1969, and assigned a 10 percent rating effective October 8, 1968. In January 1970, the RO reduced the disability rating to 0 percent; and subsequently confirmed this rating in a March 1972 rating decision. In April 1997, the RO granted an increased rating of 60 percent for service-connected bronchial asthma, effective November 8, 1995. The veteran filed an increased rating claim for bronchial asthma in February 2001. He stated that he believed his disability was closer to a 100 percent rating. In August 2002, the veteran indicated that in the last few months it has been hard for him to get out of bed and that he has gone to the emergency room at the VA three times to receive treatment for asthma because his oxygen intake was low. He stated that when he walks he has shortness of breath after taking only a few steps. On his VA Form-9, he also indicated that he recently had a viral infection in his lungs and almost died and that his oxygen intake was less than normal, below 92. Last, the veteran stated in January 2004 that his asthma makes it hard for him to do chores around the house. In sum, the veteran contends that he is entitled to an increased (100 percent) disability rating for his service- connected bronchial asthma. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and an increased disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). 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. The veteran's bronchial asthma is currently rated under the provisions of 38 C.F.R. § 4.97, Diagnostic Code (DC) 6602. Under DC 6602, a 10 percent evaluation is warranted where the veteran has an FEV-1 of 71 to 80 percent of predicted value, or; an FEV-1/FVC of 71 to 80 percent, or; intermittent inhalation or oral bronchodilator therapy. A 30 percent rating is warranted when the FEV-1 value is 56 to 70 percent of the predicted value or when the FEV-1/FVC is 56 to 70 percent or when daily inhalational or oral bronchodilator therapy is required or when inhalational anti-inflammatory medication is required. A 60 percent rating is warranted when the FEV-1 value is 40 to 55 percent of the predicted value, or; the FEV-1/FVC is 40 to 55 percent or when at least monthly visits to a physician for required care of exacerbations are necessary, or; when intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids are prescribed. A 100 percent rating is warranted for asthma when pulmonary function tests show an FEV-1 value of less than 40 percent of the predicted value, or; show an FEV-1/FVC of less than 40 percent, or; more than one attack per week with episodes of respiratory failure is shown, or; when daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications is required. 38 C.F.R. § 4.97, DC 6602 (2004). A list of current VA medications dated from October 2000 to June 2004 show prescriptions for daily use of Beclomethasone, Triamcinolone, Fluticasone, and Flunisolide. An August 1, 2001 VA urgent care clinic x-ray shows increased lung markings bilaterally with no active infiltrate or effusion. The assessment was upper respiratory infection with asthma exacerbation. An August 5, 2001 VA urgent care clinic note shows findings of shortness of breath on minimal effort (walking across the room), chest congestion, and cough without improvement. The veteran stated that he did not take the Triamcinolone as directed since it irritated him and caused him to cough endlessly. Physical examination revealed that the veteran was obese and somewhat short of breath at rest. The assessment was asthma exacerbation without significant improvement post bronchodilator treatment; and the veteran was referred to the emergency room for further care. An August 5, 2001 VA emergency room note shows a diagnosis of asthma exacerbation with need for steroids. On August 15, 2001, a pulmonary clinical note shows recent exacerbation of his asthma requiring multiple emergency room visits. The impression was asthma exacerbation, requiring corticosteroids and antibiotics. A September 2001 VA examination report shows the veteran reported having difficulty breathing after walking half a block. The examiner noted a history of daily asthmatic attacks and no normal functioning between the attacks because of shortness of breath. The veteran described his symptoms as shortness of breath, difficulty walking distances, and difficulty climbing up stairs; and it was noted that the veteran's respiratory condition required him to have bedrest. Pulmonary Function Test Results showed FEV-1 values of 59% of the predicted value before bronchodilator and 63% of the predicted value post bronchodilator; and a FEV-1/FVC ratio of 77% and 95% of the predicted value before bronchodilator and 74% and 93% of the predicted value post bronchodilator. The interpretation was mild restriction with no evidence of bronchospasm or acute respiratory illness. A January 2002 VA pulmonary consult shows that Pulmonary Function Tests in 1996 were consistent with mild restrictive disease secondary to obesity and that a January 2002 chest x- ray showed small lung volumes, no infiltrates. The assessment was increasing shortness of breath with exertion. The examiner found that the veteran's symptoms were out of proportion to his asthma alone and that he needed to rule out other causes of shortness of breath, specifically cardiac, as well as possible co-existence of sleep apnea. The examiner also noted that the veteran's cough could be due to reflux and/or use of angiotensin-converting enzyme inhibitor. A March 2002 VA pulmonary clinical note shows Pulmonary Function Tests were consistent with restrictive defect and that chest x-rays showed small lung volumes. The assessment was shortness of breath with exertion and rule out pulmonary fibrosis. The plan was to continue with Azmacort. In May 2002, a pulmonary clinical note shows complaints of increasing shortness of breath over the last six to seven months. The Pulmonary Function Tests showed a mixed restrictive and obstructive pattern and an echocardiogram showed an ejection fraction of 65% with a dilated left ventricle and left atrium consistent with hypertension heart disease. The veteran's cough was much improved and he denied any significant shortness of breath, and had no orthopnea or paroxysmal nocturnal dyspnea. The impression was that cough and shortness of breath were much improved, and etiological considerations included asthma, possibly exacerbated by gastroesophageal reflux disease or post-nasal drip/allergies, and cardiac findings; although the veteran was not found to be in clinical congestive heart failure. An October 2002 VA pulmonary clinical note shows multiple episodes of shortness of breath and wheezing during the day with associated dyspnea on exertion. The examiner noted that by history the veteran had moderate persistent asthma and was on Serevent, a steroid inhaler. The plan was to continue use of current metered-dose inhalers. A January 2003 VA pulmonary clinical note shows the veteran's asthma had been relatively stable with occasional night time awakenings and wheezing. The impression was asthma, now mildly persistent by history; currently on steroid inhaler. In December 2003, a VA pulmonary clinical note shows the veteran's reports of stable breathing with symptoms two times a week. The plan was to continue with Flunisolide nasal spray and decrease the dosage of Fluticasone from four puffs to two puffs twice daily. A January 2004 VA Pulmonary Function Test shows an FEV-1 value of 30.8% of the predicted value before bronchodilator and 43.8% of the predicted value after bronchodilator; and a FEV-1/FVC ratio of 71% before bronchodilator and 78% after bronchodilator. The interpretations were "severely reduced" and "significant response to bronchodilators." The examiner also found combined severe obstructive and moderate restrictive ventilatory defect, with significant reversibility with bronchodilators; and noted that reduced diffusion capacity of carbon monoxide and normal maximal diffusing capacity alveolar gas volume was consistent with maldistribution of ventilation, versus restrictive lung disease. He found that the veteran's restriction could be explained, in part, by his obesity. The examiner also found that arterial blood gasses showing normal acid based status, with moderate hypoxemia and increased carboxyhemoglobin suggested continued smoke inhalation. Smoking cessation, optimization of bronchodilator therapy, weight loss, evaluation of desaturations with activity and follow-up Pulmonary Function Tests were recommended. Compared to previous Pulmonary Function Tests, the veteran was noted to have a reduction in flow rates and volumes, but no change in diffusion capacity of carbon monoxide. An April 2004 VA examination report shows that the lungs were clear to auscultation and percussion. The examiner noted that although the lung sounds were somewhat diminished throughout, there was no evidence of rales, rhonchi, wheezing, or other abnormalities. He also found that the veteran was currently totally disabled, but that the degree of disability could not be solely attributed to bronchial asthma. A September 2004 VA examination report shows a diagnosis of low lung volumes and bibasilar atelectasis. The veteran's current medications included daily use of Flunisolide, Fluticasone, and Triamcinolone Acetonide. Upon review, the Board resolves all doubt in the veteran's favor and finds that an increased rating of 100 percent is warranted for bronchial asthma. As noted, under DC 6602, a 100 percent rating is warranted for asthma when Pulmonary Function Tests show an FEV-1 value of less than 40 percent of the predicted value, or show an FEV-1/FVC of less than 40 percent of the predicted value; or when more than one attack per week with episodes of respiratory failure is shown; or when daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications is required. 38 C.F.R. § 4.97, DC 6602 (2004). The medical evidence of record shows that in August 2001 the veteran was seen multiple times in the emergency room for treatment related to his asthma, and had reports of daily asthma attacks in September 2001 and weekly symptoms in December 2003. In September 2001, it also was noted that the veteran's respiratory condition required bedrest. Pulmonary Function Tests showed that FEV-1 values were 30.8% of the predicted value in January 2004. Moreover, prescriptions for daily use of corticosteroids were listed on the veteran's medical records from October 2000 to September 2004. As a whole, these findings are enough to warrant a 100 percent rating under DC 6602. The January 2004 examiner indicated that findings demonstrated ventilation restriction, versus restrictive lung disease and that other contributing factors affected the distribution of ventilation in the lungs, such as obesity and smoking. However, this is not enough to refute the veteran's claim, as the examiner did not indicate to what degree the veteran's obesity and smoking contributed to his poor lung ventilation. Furthermore, the evidence shows that the criteria for a 100 percent rating under DC 6602 are met, even if obesity and smoking are contributing factors. In sum, the Board finds that the level of the veteran's bronchial asthma more closely resembles the criteria for a 100 percent rating under DC 6602. See 38 C.F.R. § 4.7. ORDER Entitlement to an increased rating of 100 percent for bronchial asthma is granted, subject to the rules and payment of monetary benefits. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs