Citation Nr: 0633695 Decision Date: 10/31/06 Archive Date: 11/14/06 DOCKET NO. 04-06 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right hip disability as secondary to service connected disabilities and/or medications prescribed for service connected disability. 2. Entitlement to service connection for a right knee disability as secondary to service connected disabilities and/or medications prescribed for service connected disability. 3. Entitlement to an initial rating in excess of 60 percent for thoracolumbar spine disability. 4. Entitlement to an initial rating in excess of 10 percent for a left ankle disability. 5. Entitlement to an increased rating for bronchial asthma, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran had active duty from April 1942 to January 1946, and from July 1953 to September 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from adverse rating decisions by the San Juan, the Commonwealth of Puerto Rico Regional Office (RO) of the Department of Veterans' Affairs (VA). In April 2005, the Board remanded the case to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further development. The service connection claims are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development and are addressed in the REMAND following this decision. FINDINGS OF FACT 1. The veteran's intervertebral disc syndrome (IVDS) of the thoracolumbar spine disability results in a chronic orthopedic manifestation of severe limitation of motion and chronic neurologic manifestation of sensory deficit in the right and left lower extremities with no more than mild muscle weakness. 2. The veteran's residuals of left ankle fracture is manifested by malleolus bony deformity of the left ankle with soft tissue swelling and no more than mild mediolateral instability and no more than moderate limitation of motion. 3. Since the inception of the appeal, the veteran's bronchial asthma has required treatment with a daily low dose parenteral corticosteroid with pulmonary function test (PFT) findings of an FEV-1 of 60 percent or greater and an FEV- 1/FVC of 63 percent or greater. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for thoracolumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b), 5110(g) (West 2002); 38 C.F.R. § 4.25, 4.26, 4.71a, Diagnostic Code (DC) 5293 (1995-2002); 38 C.F.R. § 4.71a, DC 5293 (2002); 38 C.F.R. §§ 4.71a, DC 5243 (2003-06); 38 C.F.R. § 4.124a, DC 8720 (2002-06). 2. The criteria for an initial rating in excess of 10 percent rating for left ankle disability have not been met. 38 U.S.C.A. §§ 5107(b) (West 2002); 38 C.F.R. Part 4, §§ 4.71a, DC 5271 (2006). 3. The criteria for a 60 percent rating, but no greater, for bronchial asthma have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.97, DC 6602 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Rating of disabilities The veteran claims entitlement to higher ratings for his service connected thoracolumbar, left ankle and bronchial asthma disabilities. A claimant bears the burden to present and support a claim of benefits. 38 U.S.C.A. § 5107(a) (West 2002). In evaluating claims, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2006). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2006). A rating specialist must interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture to accurately represent the elements of disability present. 38 C.F.R. § 4.2 (2006). As such, the determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an appeal stems from an initial rating, VA must consider the issue as to whether separate or "staged" ratings may be assigned for any or all of the retroactive period from the effective date of the grant of service connection in addition to a prospective rating. See Fenderson v. West, 12 Vet. App. 119 (1999). A. Thoracolumbar spine disability The veteran claims entitlement to an initial rating in excess of 60 percent for thoracolumbar spine disability. An RO rating decision dated August 1997 granted service connection for lumbar strain and assigned an initial 20 percent evaluation under DC 5295. The veteran appealed the initial rating assigned. Upon receipt of additional evidence, an RO rating decision dated January 1999 increased the initial evaluation to 60 percent, under DC 5293-5003, effective to the date of claim. The severity of a lumbar spine disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. 4.71a. Effective September 23, 2002, VA revised the criteria for evaluating intervertebral disc syndrome (IVDS). See 67 Fed. Reg. 54345-54349 (Aug. 22, 2002). Effective September 26, 2003, VA revised the criteria for evaluating diseases and injuries of the Spine, to include a renumbering of the diagnostic codes. See 68 Fed. Reg. 51454-51458 (Aug. 27, 2003). VA later amended the IVDS criteria to include a definition of incapacitating episodes which had been inadvertently omitted with publication of the final rule. 69 Fed. Reg 32449-01 (June 10, 2004). This correction is effective September 26, 2003. Id. The Board may only consider and apply the "new" criteria as of the effective date of enactment, but may apply the "old" criteria for the entire appeal period. 38 U.S.C.A. § 5110(g) (West 2002); VAOPGCPREC 3-2000 (Apr. 10, 2000). The 60 percent in effect under the "old" criteria of DC 5293 contemplated pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurologic findings appropriate to site of diseased disc, little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (1995-2002). This is the maximum rating for thoracolumbar spine disability under this diagnostic code. A higher rating under the old criteria would require residuals of vertebral fracture with cord involvement, bedridden or requiring long leg braces (DC 5285) or ankylosis of the entire spine (DC 5286). The radiologic evidence of record demonstrates that the veteran's thoracolumbar spine is manifested by 1) prominent diffuse spondylytic changes; 2) mild compression deformity of the L4 vertebra; 3) acquired spinal canal stenosis at the L3- L4 level secondary to diffuse circumferential bulge of the intervertebral disc, hypertrophy of the ligamentum flavum, and degenerative changes involving the apophyseal joints; 4) markedly dehydrated L4-L5 intervertebral disc; 5) degenerated L5-S1 intervertebral disc; 6) bilateral lateral recess stenosis at the L5-S1 level; 7) mild diffuse circumferential bulge of the L2-L3 intervertebral disc; 8) ankylosed right sacroiliac (SI) joint and degenerative spur in the left SI joint; and 9) scattered vascular calcifications. The VA examination reports of record, as well as private and VA clinic records, demonstrate that the veteran does not have cord involvement due to vertebral fracture being either bedridden or requiring long leg braces. There is active range of motion of the thoracolumbar spine with VA examination in September 2005 demonstrating 40 degrees of flexion, 20 degrees of extension, and 20 degrees of rotation and lateral flexion bilaterally. Thus, the veteran has not met the requirements for a rating in excess of 60 percent under the criteria in effect prior to September 23, 2002. See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 91 (27th ed. 1988) (ankylosis refers to immobility and consolidation of a joint due to disease, injury, or surgical procedure). Cf. 38 C.F.R. § 4.71a, Schedule of ratings - musculoskeletal system, NOTE 5 (2006) (fixation of a spinal segment in neutral position (zero degrees) represents favorable ankylosis). Changes to the IVDS Code became effective September 23, 2002. The new version, which is now redesignated to Diagnostic Code 5243, evaluates IVDS (preoperatively or postoperatively) on either the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2003- 06). For purposes of evaluations under 5243, "[c]hronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so. Id. at NOTE 1. Orthopedic disabilities are rated using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Id. Similarly, neurologic disabilities are rated separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. The veteran's chronic orthopedic manifestations of IVDS during the appeal period have been represented by severe limitation of motion of the lumbar spine. This warrants the maximum 40 percent rating under DC 5292. As held above, a higher rating is not warranted under either DC 5286 or 5289. The chronic neurologic manifestations include findings compatible with neurologic impairment of the right S1 dermatome involving sensory disturbance in the right lower extremity. VA examination in October 1998 detected a mild 4/5 weakness of the right lower extremity that was not detected on VA examinations in April 1997, October 2003 and September 2005 as well as an examination conducted in the clinical setting in October 2005. An absent right Achilles reflex was noted on VA examination in September 2005. VA examinations have found normal muscle tone of the right lower extremity with no evidence of muscle atrophy indicative of disuse. Similarly, VA examinations have demonstrated reflex deficits in the left lower extremity that would be compatible with a left S1 nerve root impairment but a sensory deficit that does not follow a dermatomal pattern. VA examination in October 1998 detected a mild 4/5 weakness of the left lower extremity while VA examinations in April 1997, October 2003 and September 2005 measured 5/5 strength with normal muscle tone and no evidence of muscle atrophy indicative of disuse. There is report of a sensory deficit that does not follow a dermatomal pattern. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case" and involves consideration of such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Butts v. Brown, 5 Vet. App. 532, 538 (1993). In rating disability involving injury to the peripheral nerves and their residuals, attention is to be given to the site and character of injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2006). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123 (2006). The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124 (2006). In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a (2006). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6 (2006). DC 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, DC 8520 (2006). Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. DC 8620 refers to neuritis of the sciatic nerve while DC 8720 refers to neuralgia of the sciatic nerve. The preponderance of the evidence demonstrates chronic neurologic manifestation of sensory deficit in the right and left lower extremities with no more than mild muscle weakness. There is no evidence of organic changes such as muscle atrophy, trophic changes, etc., of either lower extremity. This disability is primarily sensory in nature and compatible with an incomplete paralysis of the sciatic nerve that is mild in degree. Accordingly, the veteran's neurologic impairment of the right and left lower extremities would be separate rated as 10 percent disabling under DC 8720. Accordingly, the Board finds that, under the new criteria, the veteran could be rated as 40 percent rating for his chronic orthopedic manifestation of severe limitation of lumbar spine motion, a separate 10 percent rating for his chronic neurologic manifestation of sensory deficit in the right lower extremity, and a separate 10 percent rating for his chronic neurologic manifestation of sensory deficit of the left lower extremity. After applying the bilateral factor for both extremities under 38 C.F.R. § 4.26 and combining the ratings under 38 C.F.R. § 4.25, the veteran would be entitled to a total 50 percent schedular rating by separately rating his chronic orthopedic and neurologic disabilities under DC 5243. The 60 percent rating currently in effect represents that maximum schedular rating for alternate consideration of the frequency and duration of his incapacitating episodes of IVDS. Thus, the changes to the IVDS criteria provide no benefit to the veteran. Effective September 26, 2003, VA revised the criteria for evaluating diseases and injuries of the Spine. See 68 Fed. Reg. 51454-51458 (Aug. 27, 2003). In pertinent part, the only possible higher rating available for a chronic orthopedic manifestation of lumbar spine disability under these revised criteria would require a finding of favorable or unfavorable ankylosis. Fixation of a spinal segment in neutral position (zero degrees) represents favorable ankylosis. Cf. 38 C.F.R. § 4.71a, Schedule of ratings - musculoskeletal system, NOTE 5 (2006). In this case, there is radiologic evidence of ankylosis of the right SI joint. However, the thoracolumbar spinal segment demonstrates active motion and is not fixated. Thus, these regulatory changes do not offer a more favorable result in this case. In so deciding, the veteran has been deemed competent to describe his lumbar spine symptoms and limitations. In fact, his report of symptoms and limitations has been deemed credible and consistent with the medical descriptions of his disability as reflected in his 60 percent schedular rating. However, the preponderance of the lay and medical evidence of record demonstrates that the signs and symptoms of his disability do not meet the criteria for a higher rating still. The benefit of the doubt rule, therefore, is not for application. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). B. Left ankle disability The veteran claims entitlement to a rating in excess of 10 percent for his residuals of left ankle fracture. Historically, the veteran incurred a fracture of the left lateral condyle and distal tibia in service with no displacement. VA examination in April 1997 included his report of left ankle pain on the left lateral aspect of the ankle with weakness and a tendency to fall. His pain worsened with prolonged walking or standing. Physical examination demonstrated a prominent round and flattening malleolus bony deformity of the left ankle, twice the size of the right ankle, that was tender to palpation. His left ankle range of motion measured 10 degrees of dorsiflexion and 30 degrees of plantar flexion. He was able to stand, squat and raise on the toes and heels. He could complete supination and pronation without pain in the ankle. There was mild mediolateral instability, but no anterior instability, of the left ankle. There was mild crepitation, but no atrophy and normal muscle strength. He had a normal gait cycle. An x-ray examination was interpreted as showing mild soft tissue swelling and plantar calcaneal spur with a well-maintained ankle joint. He was given a diagnosis of residuals of left ankle fracture with soft tissue swelling and calcaneal spur. An RO rating decision dated August 1997 granted service connection for residuals of left ankle fracture with soft tissue swelling and calcaneal spur, and assigned an initial noncompensable evaluation under DC 5271. The veteran appealed the initial rating assigned. During an RO hearing in August 1998, the veteran claimed entitlement to a compensable rating as his left ankle disability prevented him from walking due to frequent swelling and painful motion. In October 1998, he underwent VA examination with benefit of review of his claims folder. He described severe left ankle pain in the lateral aspect with occasional swelling causing difficulty with walking and going up stairs. He took Tylenol or Panadol tablets three times per day (t.i.d.) with good pain control for two hours. His past treatment included injections. On physical examination, there was a prominent lateral malleolus bony deformity that was non-tender to palpation. There was no angulation, false motion, shortening or interarticular involvement. There was no malunion, non-union, loose motion or false joint. There was no tenderness to palpation, drainage, edema, redness or heat of the left ankle. His range of motion measured 10 degrees of dorsiflexion and 30 degrees of plantar flexion with mild pain from the 1st to the last degree in the range of motion measured. He had a normal gait cycle. There was no ankylosis or leg discrepancy. Based upon physical examination, the examiner opined that there was no functional loss due to pain. An RO rating decision dated January 1999 granted a 10 percent evaluation for left ankle disability, under DC 5271, effective to the date of claim. VA examination in January 2003 included the veteran's complaint of frequent twisting of his left ankle with increased pain and swelling. His range of motion measured 10 degrees of dorsiflexion and 30 degrees of plantar flexion. He had a negative anterior-posterior drawer and talar-tilt tests. No ankylosis was present. It was indicated that no left ankle pathology was found. VA examination in September 2005 included his report of constant moderate to severe left ankle pain on the lateral aspect with radiation to the plantar aspect associated with cramps. He also referred to loss of balance. His symptoms were aggravated with walking with flare-ups on 8-10 occasions lasting for four hours. He denied episodes of dislocation or recurrent subluxation. On physical examination, he reported severe pain on palpation. He had a painful expression on his face with ambulation. He would not perform repetitive movements due to report of severe pain, and his functional impairment could not be assessed. There was moderate soft tissue edema of the left ankle joint with a large bony deformity on the lateral malleolus. There was also soft tissue edema on the medial malleolus with loss of normal anatomical landmarks. There was no instability, dislocation or subluxation or guarding of movements. He walked unaided with a slow guarded gait. The severity of an ankle disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. 4.71a. The RO has currently assigned a 10 percent rating for left ankle disability under DC 5271. This rating represents moderate limitation of right ankle motion. Normal range of motion of the ankle is measured as 0-20 degrees of dorsiflexion and 0-45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (2006). Under DC 5271, a 20 percent rating would be warranted for marked limitation of right ankle motion. In evaluating musculoskeletal disabilities, the Board must assess functional impairment and determine the extent to which a service connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2006). Ratings based on limitation of motion do not subsume the various rating factors in 38 C.F.R. §§ 4.40 and 4.45, which include pain, more motion than normal, less motion than normal, incoordination, weakness, and fatigability. These regulations, and the prohibition against pyramiding in 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206- 08 (1995). In other words, when rated for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. A finding of functional loss due to pain must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." 38 C.F.R. § 4.40 (2006). Consideration of 38 C.F.R. §§ 4.40 and 4.45 is unnecessary where a claimant is in receipt of the maximum rating for limitation of motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In this case, the veteran has described his left ankle disability as primarily manifested by chronic pain, occasional swelling, instability and decreased limitation of motion. His symptoms are exacerbated on use. His VA findings during the appeal period have measured range of motion ranging as 10 degrees of dorsiflexion and 30 degrees of plantar flexion with no additional functional limitations due to use. He has a malleolus bony deformity of the left ankle with soft tissue swelling and no more than mild mediolateral instability. VA examination in October 1998 found no evidence of functional loss due to pain while VA examination in September 2005 was unable to assess any functional impairment due to the veteran's inability to perform repetitive movements based upon complaint of severe pain. His physical examination findings, when considered in combination of the veteran's testimony and statements of the record, are consistent with some additional functional loss with use. However, even with consideration of 38 U.S.C.A. § 5107(b) and 38 C.F.R. §§ 4.3, 4.7, 4.40 and 4.45, his limitation of left ankle motion falls well short of being "marked" in degree. See 38 C.F.R. § 4.71, Plate II (2006). The Board finds that the preponderance of the evidence establishes that the veteran's residuals of left ankle fracture is manifested by malleolus bony deformity of the left ankle with soft tissue swelling and no more than mild mediolateral instability and no more than moderate limitation of motion. Thus, a rating in excess of 10 percent rating is not warranted under DC 5271. There is no evidence of ankylosis, malunion or astragalectomy to warrant consideration of DC's 5270, 5272, 5273 and 5274. He is deemed competent to describe the symptoms and limitations as a result of his left ankle disability, but the preponderance of the medical evidence demonstrates that the signs and symptoms of his disability do not meet the criteria for a higher rating still. The benefit of the doubt rule, therefore, is not for application. Ortiz, 274 F. 3d. at 1365. C. Asthma The veteran claims entitlement to a rating in excess of 30 percent disabling for his service connected bronchial asthma. Historically, an RO rating decision dated in 1971 established an award of service connection for bronchial asthma, and assigned an initial 30 percent evaluation. He filed his claim for an increased rating in October 2002. The severity of a respiratory disease is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. § 4.97. The veteran's 30 percent rating for bronchial asthma under DC 6602 contemplates an FEV-1 (forced expiratory volume in one second) of 56 to 70 percent predicted, or; FEV-1/FVC (forced vital capacity) of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy; or inhalational anti- inflammatory medication. 38 C.F.R. § 4.97, DC 6602 (2006). A 60 percent rating is warranted for an 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. Id. A 100 percent rating is warranted for an FEV-1 of 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 immunosuppressive medications. Id. Records from the veteran's private treating physician document that, since the inception of the appeal, he has been prescribed a 4 mg dose of Medrol twice a day (b.i.d.) to treat his bronchial asthma. As noted by the Board in the April 2005 remand and confirmed by VA examination in September 2005, Medrol is a brand name for methylprednisone which is a parenteral corticosteroid. DRUG INFORMATION HANDBOOK FOR PHYSICIAN ASSISTANTS 1999-2000 593 (1999). Accordingly, the veteran has met the criteria for a 60 percent rating under DC 6602 effective to the date of claim. The preponderance of the evidence, however, is against a rating in excess of 60 percent for the veteran's bronchial asthma. The VA examiner in September 2005 provided opinion that the veteran's prescription of Medrol constituted a low dosage of systemic corticosteroid usage. There is no competent evidence to the contrary. Additionally, there is no competent evidence of record that bronchial asthma has led to episodes of respiratory failure although there is an undocumented report of severe asthma attacks not responding to his usual treatment and requiring emergency room treatment. His pulmonary function testing in November 2003, May 2005 and September 2005 have demonstrated FEV-1 of 60 percent or greater and an FEV-1/FVC of 63 percent or greater. Recent clarifications regarding the use of PFT's have no bearing on the claim. See 71 Fed. Reg. 52457 (Oct. 6, 2006). Thus, the veteran has not met the criteria for a rating in excess of 60 percent for his bronchial asthma under DC 6602. The Board has deemed the veteran as competent and credible to describe his bronchial asthma symptoms, but he is not deemed competent to attribute his Medrol prescription as a high dosage usage nor that his bronchial asthma attacks have resulted in any instances of respiratory failure. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); 38 C.F.R. § 3.159(a) (2006). His PFT findings are not subject to lay description. The preponderance of the medical evidence is against a rating in excess of 60 percent for his bronchial asthma. There is no doubt of material fact to be resolved in his favor. 38 U.S.C.A. § 5107(a) (West 2002). II. Duty to assist and notify In reaching this determination, the Board has carefully reviewed the record to ensure compliance with VA's statutory and regulatory notice and assistance requirements. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002). Specifically, VA has a duty to notify a claimant (and his representative) of any information, whether medical or lay evidence or otherwise, not previously provided to VA that is necessary to substantiate a claim. 38 U.S.C.A. § 5103 (West 2002). As part of that notice, VA shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, VA will attempt to obtain on behalf of the claimant. Id. A 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. See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Id. The Pelegrini II Court also held that the language of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) require that a notice be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. An RO letter dated May 2005 satisfied elements (1), (2), (3) and (4) by notifying him of the types of evidence and/or information necessary to substantiate his claims, and the relative duties on the part of himself and VA in developing his claims. He was further advised "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." The statute and regulations regarding notice require that a claimant be given the required information prior to VA's decision on the claim, and in a form that enables a claimant to understand the process, the information needed, and who is responsible for obtaining that information. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). However, in circumstances where such notice was not provided, the focus must be directed as to whether the timing defect has resulted in harmful error to the claimant. Id. See generally 38 C.F.R. § 20.1102 (2006) (error or defect in any decision by the Board that does not affect the merits of the issue or the substantive rights of the appellant shall be considered harmless and not a basis for vacating or reversing such determination). The claims were initiated prior to the passage of the current statutory and regulatory provisions governing notice. The rating decision on appeal, the statement of the case (SOC), and the supplemental statements of the case (SSOC's) told him what was necessary to substantiate his claims throughout the appeals process. The claim has been readjudicated since compliant notice has been sent. There has been no showing or argument that a notice deficiency both exists and has resulted in prejudicial error to the veteran. Rather, the notices sent to the veteran sent to him since the inception of the appeal notified him of the relevance of his private treatment records that have been solely responsible for establishing his entitlement to a 60 percent rating for his bronchial asthma. He has not identified any additional evidence and/or information that could potentially result in a higher rating for his thoracolumbar, left ankle and bronchial asthma disabilities. Any notice deficiency that may have occurred by notice providing the veteran a single content compliant notice has resulted in harmless error. 38 C.F.R. § 20.1102 (2006). Uniform ratings have been in effect during the appeal period and any failure to notify him how to establish an effective date of award is also harmless error. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Any further notice to the veteran would only result in a delay in adjudicating the claims without any additional benefit accruing to him. 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 appellant); 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). Under these circumstances, adjudication of this appeal, without referral to the RO for further consideration of the claims for further notice poses no prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. at 394; VAOPGCPREC 16-92 (July 24, 1992). VA also has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2006). The RO obtained service medical records as well as private and VA clinic records identified as relevant to the claims on appeal. There is no outstanding request to obtain any additional evidence and/or information relevant to the claims on appeal. Multiple medical examinations have been provided to the veteran during the appeal period, to include examination ordered by the Board. The evidence and information of record, in its totality, provides the necessary information to decide the case, and there is no reasonable possibility that any further assistance to the appellant would be capable of substantiating his claims. ORDER The claim of entitlement to an initial rating in excess of 60 percent for thoracolumbar spine disability is denied. The claim of entitlement to an initial rating in excess of 10 percent for residuals of left ankle fracture is denied. The claim of entitlement to a 60 percent rating, but no higher, for bronchial asthma is granted. REMAND The veteran claims entitlement to service connection for disabilities of the right hip and knee as proximately due to service connected disabilities and/or medications prescribed for service connected disability. X-ray examinations of the right hip and knee have resulted in impressions of osteoarthritis although a November 2003 x-ray examination interpreted findings of generalized osteoporosis in the pelvis. VA examination in September 2005 included opinion that the veteran's low dosage usage of oral and inhaled steroids for many years, used to treat his service connected bronchial asthma, have been responsible for demineralization leading to osteoporosis. Service connection may be established on a secondary basis for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a) (2006). This provision has been construed as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to add an additional section to incorporate the holding in Allen. 71 Fed. Reg. 52744, 52746 (September 7, 2006) (codified at 38 C.F.R. § 3.310(b)). The new provision states: Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The Board finds that it may be potentially prejudicial to adjudicate the veteran's claim at this time without his notice of the amendment to 38 C.F.R. § 3.310 and obtaining clarifying opinion as to whether the veteran manifests osteoporosis of the right hip and/or knee. Bernard v. Brown, 4 Vet. App. 384 (1993) (the Board must consider whether a claimant will be prejudiced by addressing a question that has not been addressed by the RO). Accordingly, the claim is REMANDED to the RO via the AMC for the following action: 1. Notify the veteran as follows: a) advise him of the amendment to 38 C.F.R. § 3.310 effective October 10, 2006; b) advise him of the evidence and information necessary to substantiate his secondary service connection claims; c) advise him of the relative duties upon himself and VA in developing his claims; d) advise him that he should submit all evidence and/or information in his possession that may be relevant to his claims on appeal; and e) advise him of the evidence and information necessary to establish an initial rating and effective date of award. 2. Obtain the veteran's complete clinic records from the San Juan, the Commonwealth of Puerto Rico VA Medical Center since December 2005. 3. Schedule the veteran for appropriate VA examination in order to determine the nature and probable etiology of his right hip and right knee disabilities. The claims folder, including any additional treatment records associated with the file, must be available for review by the examiner. All specialized testing should be completed as deemed necessary by the examiner. Following examination and review of the claims folder, the examiner should provide opinion with respect to the following questions: a) Whether the veteran manifests osteoporosis of the right hip and/or right knee? AND; b) If so, whether it is at least as likely as not (probability of 50 percent or greater) that the veteran's daily prescriptive use of Medrol caused and/or aggravated his osteoporosis? In providing this opinion, the examiner should be requested to discuss the opinion set forth in the September 2005 VA respiratory examination report. OR; c) Whether it is at least as likely as not (probability of 50 percent or greater) that any diagnosed disability of the right hip and/or knee is causally related to his service connected disabilities and/or the medication that the veteran takes for his service connected disabilities? OR; c) Whether there is any increase in severity of nonservice-connected right hip and/or right knee disability that is causally related to service connected origin and not due to the natural progress of the disease? AND; d) If it is determined that aggravation beyond the natural progress of disorder exists, please identify the baseline level of severity of symptoms prior to the use of medications prescribed to treat service connected disability and the level of severity of symptoms due to the use of medications prescribed to treat service connected disability? 4. Thereafter, readjudicate the claims. In so doing, readjudicate the claim with consideration to the amendment to 38 C.F.R. § 3.310 effective October 10, 2006. If any benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case and an appropriate period of time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). The purpose of this REMAND is to ensure due process of law and obtain additional evidence. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ C.W. Symanski Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs