Citation Nr: 0709813 Decision Date: 04/04/07 Archive Date: 04/16/07 DOCKET NO. 05-38 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE What evaluation is warranted for asthma, from May 15, 2004? REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD W. Preston, Associate Counsel INTRODUCTION The veteran served on active duty from May to July 2001, and from February 2003 to May 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. A Central Office hearing was conducted by the undersigned Acting Veterans Law Judge in January 2007. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection (so-called "original ratings") and dissatisfaction with determinations on later- filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Inasmuch as this issue was placed in appellate status by a notice of disagreement expressing dissatisfaction with an original rating, the Fenderson doctrine applies. The record raises the issue of whether the veteran is entitled to service connection for headaches secondary to his asthma. As this issue is not presently developed or certified for Board review, it is referred to the RO for appropriate development. FINDINGS OF FACT 1. For the period from May 15, 2004, to March 7, 2005, the veteran's asthma required daily use of inhalational or bronchodilator therapy. 2. Since March 8, 2005, the veteran's asthma has required intermittent (at least three per year) courses of systemic (oral or parenterol) corticosteroids. CONCLUSIONS OF LAW 1. For the period from May 15, 2004, to March 7, 2005, the schedular criteria for a 30 percent rating for asthma were met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6602 (2006). 2. Since March 8, 2005, the schedular criteria for a 60 percent rating for asthma have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) Under 38 U.S.C.A. § 5102, VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The veteran must also be notified to submit all evidence in his possession, what specific evidence he is to provide, and what evidence VA will attempt to obtain. VA thirdly has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record, and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. The Board acknowledges that complete notice did not occur prior to the rating decisions on appeal here being adjudicated. Outweighing this deficiency, however, is the fact that the veteran was provided the applicable regulations in the October 2005 statement of the case (SOC). To the extent that there was any deficiency in the timing of the notice to the appellant, the Court has held that an SOC that complies with all applicable due process and notification requirements constitutes a readjudication decision. Prickett v. Nicholson, 20 Vet. App. 370 (2006); see also Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006) (holding that a supplemental statement of the case (SSOC) that complies with applicable due process and notification requirements constitutes readjudication). Significantly, and a fortiori of relevance to the application of Prickett, Mayfield also holds that VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. Id. at 541. For the aforementioned reasons, therefore, no additional VA development is required to satisfy the statutory duty to assist the veteran and provide him appropriate notice. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (adhering strictly 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 veteran); Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in the October 2005 SOC otherwise fulfills the provisions of 38 U.S.C.A. § 5103(a) to include any failure to provide notice of the type of evidence necessary to establish effective dates for the disabilities on appeal. The failure to provide notice of the type of evidence necessary to establish effective dates for the disabilities on appeal is harmless because, except where otherwise indicated, the evidence preponderates against the appellant's claim, and any questions as to the appropriate effective dates to be assigned are moot. Simply put, there is no evidence of any VA error in notifying the appellant that reasonably affects the fairness of this adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Finally, VA has secured all available pertinent evidence and conducted all appropriate development. Pertinent medical records have been procured, and there is no pertinent evidence which is not currently part of the claim file. Hence, VA has fulfilled its duty to assist the appellant in the prosecution of his claim. Hence, the Board finds that VA has fulfilled its VCAA obligations to the veteran. The Claim The veteran contends that his service-connected asthma is manifested by increased adverse symptomatology that entitles him to a higher rating. It is requested that the veteran be afforded the benefit of the doubt. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (2006). In cases where the original rating assigned is appealed, consideration must be given to whether the veteran deserves a higher rating at any point during the pendency of the claim. Fenderson. Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A September 2004 rating decision granted service connection for asthma and rated it 10 percent disabling under 38 C.F.R. § 4.97, Diagnostic Code 6602, effective May 15, 2004. That disability evaluation has remained in effect to the present time. As provided by the VA schedule for rating disabilities, a 10 percent rating is assigned for bronchial asthma where pulmonary function testing reveals that forced expiratory volume in one second (FEV-1) is 71 to 80 percent predicted; the ratio of FEV-1 to forced vital capacity (FVC) (FEV-1/FVC) is 71 to 80 percent; or where intermittent inhalational or oral bronchodilator therapy is used. 38 C.F.R. § 4.97, Diagnostic Code 6602. A 30 percent rating is assigned where pulmonary function testing reveals that FEV-1 is 56 to 70 percent predicted; FEV-1/FVC is 56 to 70 percent; or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication, is used. Id. A 60 percent rating is assigned where pulmonary function testing reveals that FEV-1 is 40 to 55 percent predicted; FEV-1/FVC is 40 to 55 percent; or where at least monthly visits to a physician are needed for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids are used. Id. The highest rating allowable under this diagnostic code, 100 percent, requires evidence of FEV-1 less than 40 percent predicted; FEV-1/FVC less than 40 percent; more than one attack per week with episodes of respiratory failure; or the daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Id. In the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. 38 C.F.R. § 4.97, Note following Diagnostic Code 6602. The post-bronchodilator findings from the pulmonary function tests (PFTs) are the standard in pulmonary assessment. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilation as these results reflect the best possible functioning of an individual). For the period from May 15, 2004, to March 7, 2005, the pertinent evidence of record includes a June 2004 VA examination. The veteran was initially assigned a 10 percent disability rating in September 2004 because, on examination in June 2004, the veteran's pulmonary function test results showed that his forced expiratory volume in one second (FEV- 1) was 81 percent. In rating the veteran's asthma as 10 percent disabling, the September 2004 rating decision apparently overlooked the following significant facts. The June 2004 VA examiner noted that the veteran was taking Advair and Albuterol inhalers twice a day on a regular basis. As to Advair, it is a trade name under which GlaxoSmithKline markets the combination preparation fluticasone/salmeterol, which is a formulation containing Fluticasone (a corticosteroid) propionate and Salmeterol Xinafoate used in the management of asthma and chronic obstructive pulmonary disease (COPD). As to Albuterol, it is a short-acting ß2- adrenergic receptor agonist used for the relief of bronchospasm in conditions such as asthma and COPD. As noted above, daily inhalational or oral bronchodilator therapy satisfies the diagnostic rating criteria for a higher, 30 percent evaluation for asthma. It is clear from the veteran's June 2004 VA examination that the claimant was taking and was going to continue to take some form of daily inhalational or oral bronchodilator therapy for his asthma. Therefore, as of the date of the veteran's June 2004 examination reporting this fact, he met the criteria for a 30 percent rating for asthma. In light of this finding, and the evidence below that his asthmatic condition in time later significantly worsened, the Board resolves reasonable doubt by concluding that a 30 percent evaluation for the veteran's asthma is warranted for the period from May 15, 2004, to March 7, 2005. Gilbert v. Derwinski, 1 Vet. App. 49 (1991). A higher, 60 percent evaluation is not warranted because the evidence of record for the period from May 15, 2004, to March 7, 2005, does not include pulmonary function tests revealing that FEV-1 was 40 to 55 percent predicted; FEV-1/FVC was 40 to 55 percent; or that at least monthly visits to a physician were needed for required care of exacerbations, or that intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids were specifically used from that point forward until March 8, 2005. See 38 C.F.R. § 4.97, Diagnostic Code 6602. Since March 8, 2005, the pertinent medical evidence of record includes VA outpatient treatment records, including progress notes and records of prescribed courses of medication. On March 8, 2005, VA medication records show the veteran being prescribed the corticosteroidal immunosuppressive Prednisone for 16 days; the 16-day period repeated beginning on March 28, 2005. A VA medication record also shows the veteran having been prescribed the corticosteroid Fluticasone for 30 days with three refills, treatment also commencing March 8, 2005. On June 16, 2005, VA medication records show the veteran being prescribed the corticosteroid Prednisone again for 16 days. On October 31, 2005, VA medication records show the veteran being prescribed the corticosteroid Fluticasone with a 30-day supply and four refills. On March 20, 2006, VA medication records show the veteran being prescribed the corticosteroid Flunisolide with a 30-day supply and three refills. On November 21, 2006, VA medication records show the veteran being prescribed the corticosteroid Flunisolide with a 22-day supply and four refills remaining. VA outpatient treatment records dated from September to November 2006 confirm that the veteran's medication status was active for the corticosteroid Flunisolide, and for other forms of inhalation or oral bronchodilator therapy. Moreover, a VA primary care treatment note dated in November 2005, showed the veteran having been diagnosed with severe persistent asthma. Commencing on March 8, 2005, the record evidence shows that intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids were used. A 60 percent rating for the veteran's asthma is therefore warranted, effective March 8, 2005. The next highest rating allowable, a 100 percent disability evaluation, is not called for because the record does not show evidence of FEV-1 less than 40 percent predicted; FEV- 1/FVC less than 40 percent; more than one attack per week with episodes of respiratory failure; or the daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Id. As to the veteran's treatment with corticosteroids, record evidence does not show that either the veteran's prescription Flunisolide or Fluticasone meets the standards in the National Institutes of Health (NIH) Guidelines for the Diagnosis and Management of Asthma (Clinical Practice Guidelines, Expert Panel Report 2, 2007). A daily adult high dosage of Flunisolide is characterized as 2,000 micrograms (mcg) or 250 mcg with greater than 8 puffs. A daily adult high dosage of Fluticasone is characterized as 660 mcg. The veteran's treatment with these medications has never exceeded 250 mcg with 4 puffs twice daily, or 8 puffs in total. As to the veteran's previous treatment in 2005 with Prednisone, while there is prescription evidence of a series of consecutive short courses of treatment, the evidence is presently insufficient to verify that his ailment at the time required daily use of this corticosteroid and immunosuppressive therapy at a high dose. In reaching these conclusions, the Board has not overlooked the written statements to VA by the veteran, or the claimant's statements to VA clinicians, or his hearing testimony. Lay witnesses can testify as to the visible symptoms or manifestations of a disease or disability. Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Lay statements as to the severity of a disability, however, are not probative because lay persons are not competent to offer medical opinions. Moray v. Brown, 5 Vet. App. 211 (1993). Therefore, the Board assigns more weight to the objective medical evidence of record as outlined above. ``The Board has also considered the applicability of the benefit-of-the-doubt doctrine. With the exception of where it is applicable, however, the preponderance of the evidence is against the appellant's claim, and that doctrine is not thereto applicable. 38 U.S.C.A. § 5107(b); Gilbert. ORDER For the period from May 15, 2004, to March 7, 2005, entitlement to a 30 percent evaluation for asthma is granted, subject to the laws and regulations governing the award of monetary benefits. Since March 8, 2005, entitlement to a 60 percent evaluation for asthma is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ C. TRUEBA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs