Citation Nr: 0631914 Decision Date: 10/13/06 Archive Date: 10/16/06 DOCKET NO. 92-56 503 ) 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 rating for bronchial asthma, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD K. Fitch, Associate Counsel INTRODUCTION The veteran served on active duty from October 1948 to December 1957. This case initially came before the Board of Veterans' Appeals (Board) from a rating decision rendered in May 1991 by the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied an increased rating for bronchial asthma and service connection for a nervous disorder secondary to service-connected bronchial asthma. In a decision dated in June 1992, the Board remanded this case, identifying the issues on appeal as entitlement to an increased rating for bronchial asthma, and "[e]ntitlement to service connection for an acquired psychiatric disorder." Thereafter, the RO, in a May 1995 rating decision, again, in part, denied service connection for an acquired psychiatric disorder, and an increased rating for bronchial asthma. The case was subsequently returned to the Board for further review. In a statement dated in October 1995, the veteran apparently indicated disagreement with a May 1995 determination of the RO that service connection for a cardiac disability was not warranted. He also indicated, in that statement, as follows: "...on the implementation of BVA decision of 2-26- 60 there was a clear and unmistakable error of rating decision dated 3-24-60 which gave me 0% for asthma; because as per C&P exam of 9-21-59....my asthma and anxiety reaction were associated and thus both conditions should have been rated s/c since 12-25-57." In a Board decision dated in January 1998, these matters were referred to the RO for action as appropriate. In January 1998, the Board remanded the issues of entitlement to service connection for an acquired psychiatric disorder, as secondary to service-connected bronchial asthma, the issue of whether new and material evidence had been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, as directly incurred on or aggravated by service, and the issue of entitlement to an increased rating for bronchial asthma. Subsequently, in a May 2003 rating decision, the RO granted service connection for generalized anxiety disorder, evaluated as 10 percent disabling effective February 21, 1991, and increased to 30 percent effective December 5, 2002. The issue of entitlement to a higher evaluation for bronchial asthma has been returned to the Board for further review. FINDINGS OF FACT 1. Neither the former criteria for respiratory disabilities, in effect when the veteran filed his claim seeking a higher evaluation, nor the revised criteria, which became effective October 7, 1996, are more favorable to the veteran's claim. 2. Since February 1991, the veteran's bronchial asthma has not been found to be moderate, with asthmatic attacks rather frequent (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks, nor, since October 7, 1996, has the veteran's condition been productive of FEV-1 of 56-70 percent predicted, or; FEV- 1/FVC of 56-70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. CONCLUSION OF LAW 1. The criteria for the assignment of an evaluation in excess of 10 percent for the veteran's bronchial asthma have not been met. 38 U.S.C.A. §§ 1155, 5107, (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.97; Diagnostic Code 6602 (1996, 2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b), the notification should include the request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Board notes that in a letter dated in April 2002, the RO provided the veteran with the required notice under 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b). This letter indicates that the veteran was provided, by way of an attached Form 21-4138, with information regarding what the evidence must show with respect to his claim. In addition, the RO also provided the veteran with adequate notice of the evidence, which was not of record, that was necessary to substantiate the claim, and also specifically informed the veteran of the cumulative information and evidence previously provided to VA, or obtained by VA on the veteran's behalf. And the veteran was generally invited to send information or evidence to VA that may support the claim. In the present case, the Board notes that VA provided adequate VCAA notice with respect to the veteran's claim after the initial decision in this case. While the notice provided was not given prior to the first RO adjudication of the claim, the notice was provided by the RO prior to the March 2003 and June 2006 Supplemental Statements of the Case, and prior to the transfer and certification of the veteran's case to the Board. The Board also finds that 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), and observes that the veteran and his representative have had time to consider the content of the notice and respond with any additional evidence or information relevant to the claim. Based on the above, the Board concludes that any defect in the timing of the VCAA notice is harmless error. See generally, Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also 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 veteran are to be avoided). To decide the appeal on these facts would not be prejudicial error to the veteran. For the reasons above the Board finds that VA substantially complied with the specific requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate the claim and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies the VCAA notice); and 38 C.F.R. § 3.159(b) (the content of the notice requirement, pertaining to the evidence in the claimant's possession or a similar request to that effect). In this context, it is well to observe that the VCAA requires only that the duty to notify be 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). In addition, where the claims involve basic entitlement to service connection, the United States Court of Appeals for Veterans Claims (Court) held that the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply all of the elements of a claim for service connection, including notice that a disability rating and effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The reasoning of this case also applies in this instance. In this regard, the Board notes that the veteran was afforded notice with regarding the disability rating and effective dates in a letters dated in June and August 2006. This notice, however, was only provided very recently, calling into question the adequacy of such notice. Despite any potentially inadequate notice provided to the veteran on these latter two elements, however, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, supra. In this regard, as the Board concludes below that the preponderance of the evidence is against the veteran's claim, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. The Board also finds that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). In particular, the information and evidence associated with the claims file consists of the veteran's service medical records, post-service treatment records, multiple VA examinations in connection with the claim, and statements submitted by the veteran and in support of the claim. The Board also notes that this case has been remanded for further development Based on the foregoing, the Board concludes that there is no identified evidence that has not been accounted for with respect to the veteran's claim. Therefore, under the circumstances of this case, VA has satisfied its duty to assist the veteran and further development and further expending of VA's resources is not warranted. See 38 U.S.C.A. § 5103A. II. Increased rating claim. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2005). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2005). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2005). The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1 (2005); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. Brown, 12 Vet. App. at 126. Where laws or regulations change after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies, absent Congressional or Secretarial intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997); Karnas, 1 Vet. App. at 312-13. In addition, the General Counsel of VA has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must 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 both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. As such, VA must generally consider the claim pursuant to both versions during the course of an appeal. See VAOPGCPREC 3-2000 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). In this case, the veteran's claim for an increased rating for his service-connected asthma has been pending since it was received by the RO in February 1991. The veteran's condition has been evaluated as 10 percent disabling under Diagnostic Code 6602 since December 1957. During the course of the veteran's appeal, the regulations pertaining to the evaluation of respiratory disorders were revised effective October 7, 1996. 61 Fed. Reg. 46,720 (1996). Under the criteria in effect prior to October 7, 1996, Diagnostic Code 6602 provided a 10 percent rating when the asthma is mild, with 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 assigned when the asthma is moderate, with asthmatic attacks rather frequent (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks. A 60 percent evaluation was assigned when the asthma is severe, with frequent attacks (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication, and more than light manual labor must be precluded. A note to the code provided that in the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record. On October 7, 1996, the rating criteria for respiratory disorders were revised. Under the revised criteria, a 10 percent evaluation is warranted for bronchial asthma where the condition is manifested by FEV-1 of 71-80 percent predicted, or; FEV- 1/FVC of 71-80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent evaluation is warranted where the condition is manifested by FEV-1 of 56-70 percent predicted, or; FEV- 1/FVC of 56-70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. The next schedular evaluation of 60 percent requires FEV-1 of 40-55 percent predicted, or; FEV-1/FVC of 40-55 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. And, a 100 percent rating is assigned for FEV-1 less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. See 38 C.F.R. § 4.97, Diagnostic Code 6602 (2005). The medical evidence in this case consists of post service treatment records and multiple VA examinations and pulmonary function tests. In August 1992, the veteran was afforded the first of three VA examinations in connection with his claim. The veteran reported repeated bouts characterized by chest tightness, wheezing and dyspnea approximately once a week listing 1-2 hours. The veteran was noted to use Proventyl and Brethine. The attacks were indicated to be closely associated with the veteran's emotional status as well as contact with respiratory irritants. The veteran also reported breathlessness on moderate physical effort, but denied chronic cough. A pulmonary function test dated in July 1992 revealed FEV-1 of 80 percent predicted and FVC of 77 percent predicted. Upon examination, the veteran was noted to have prolonged expiratory phase but lungs were clear to A&P. The veteran was found to have occasional asthma attacks and was diagnosed with chronic bronchial asthma. A pulmonary function test dated in February 1995 revealed FEV-1 of 82 percent predicted and FEV-1/FVC of 80 percent actual. In December 2002, the veteran was again afforded a VA examination in connection with his claim. The examiner indicated that the veteran's claims file was reviewed. The examiner noted the veteran's medical history and indicated that the veteran's asthma attacks were usually associated with severe anxiety. The examiner indicated that in the past several years there has been no asthma at all. The veteran indicated that he had been prescribed Elixophyllin for his condition, which the examiner noted had been out of the market for many years. The veteran was noted to have chronic cough usually productive with scanty whitish sputum. The veteran denied hemoptysis, anorexia, and dyspnea on effort. The examiner found no history of asthma and indicated that the veteran was not taking any respiratory medication. No history of incapacitation was found. Upon examination, the examiner found no evidence of cor pulmonale, right ventricle hypertrophy, or pulmonary hypertension. The examiner found no evidence of restrictive disease. An x-ray showed early fibrotic changes with a posterior costopleural sulci, which the examiner indicated was not clinically significant. A pulmonary function test dated in January 2003 revealed FEV-1 of 73.0 percent predicted and FEV-1/FVC of 77 actual. The veteran was indicated to have mild obstructive ventilatory impairment. He was diagnosed with history of anxiety induced asthma with no significant findings to suggest asthma as such in the present examination. In January 2006, the veteran was again afforded a VA examination for his bronchial asthma. The examiner indicated that the veteran's claims file was reviewed and the veteran's medical history was noted. Upon examination, the veteran was indicated to have no hemoptysis and no anorexia. The extent of dyspnea upon exertion was considered to be mild. The frequency of attacks was indicated to be episodes lasting 5-6 days in irregular patterns. The veteran was noted to use Albuterol and ipratropium puffs with good response, and vicks inhalations. No periods of incapacitation were indicated, and the veteran was found not to have cor pulmonale, RVH, pulmonary hypertension or restrictive disease. Pulmonary function tests revealed FEV-1 of 108 percent predicted and FEV-1/FVC of 77 actual, which the examiner indicated was normal FEV and moderate air trapping. A chest x-ray was found to be normal. The veteran was diagnosed with bronchial asthma. Finally, a medical treatment note indicated that the veteran had been prescribed ipratropium inhalant, two puffs three times daily, with no refills; codeine 10 mg/guaifensin 100 mg/5ml, two teaspoonfuls every 6 hour for cough, from May 10, 2005 to June 9, 2005; and sulfamethoxazole 800/trimeth 160 mg, from May 10, 2005 to June 9, 2005, with no refills. Based on the foregoing, the Board finds that an evaluation in excess of 10 percent is not warranted for the veteran's bronchial asthma. In order to warrant a higher evaluation under either the previous or revised Diagnostic Code 6602, the veteran's condition must have been found to be moderate, with asthmatic attacks rather frequent (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks, or, since October 7, 1996, have been productive of FEV-1 of 56-70 percent predicted, or; FEV- 1/FVC of 56-70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. In this case, the veteran's condition has never been characterized as moderate by any of the three VA examiners who have examined the veteran in connection with his claim. The veteran's attacks have been noted to be occasional in nature, occurring in irregular patterns, and closely associated with anxiety and sometimes respiratory irritants. In addition, moderate dyspnea on exertion has not been found; rather dyspnea was found to be either nonexistent or mild on exertion. The veteran's pulmonary function tests since 1992 have all noted FEV-1 of higher than 71 percent predicted, or; FEV- 1/FVC higher than 71 percent. And while the veteran was prescribed various medications and inhalers over the years, the use of these treatments appears to have been in connection with his periodic attacks and not daily therapy or inhalational anti-inflammatory medication. Finally, the record does not establish that the schedular criteria are inadequate to evaluate the veteran's disability so as to warrant assignment of a higher evaluation on an extra-schedular basis. In this regard, the Board notes that there is no showing that the veteran's disability has resulted in marked interference with employment. In addition, there is no showing that the disability has necessitated frequent periods of hospitalization, or that it has otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence of such factors, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an evaluation in excess of 10 percent for bronchial asthma is denied. ____________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs