Citation Nr: 0735106 Decision Date: 11/07/07 Archive Date: 11/26/07 DOCKET NO. 02-09 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a rating in excess of 30 percent for asthma. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The veteran served on active duty from October 1980 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for asthma, and awarded the veteran a 10 percent rating, effective September 2000. The Board notes that the veteran's claims file was transferred to Arizona upon his relocation, and this claim is on appeal from the Phoenix, Arizona RO. The Board further notes that in September 2003, the RO increased the veteran's rating for service-connected asthma from 10 percent to 30 percent, effective September 2000. A Travel Board Hearing was held in June 2004 by a Veteran's Law Judge who is no longer with the Board, however, the veteran submitted a signed letter in September 2007, confirmed by an October 2007 phone call, stating that he did not wish another Board hearing and requested that his appeal proceed forward for review. A September 2004 Board decision remanded the veteran's claim for an increased initial rating for, inter alia, a VA respiratory examination. The requested evidentiary development was completed, and the appeal is now appropriately before the Board for consideration. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran is currently diagnosed as having asthma and is treated with an albuterol inhaler. 3. The veteran was prescribed flunisolide to treat his asthma-related symptoms in May 2004 and August 2005. 4. The veteran's most recent VA examination revealed normal pulmonary function test results and a normal inspiratory to expiratory ratio. CONCLUSION OF LAW Criteria for a rating in excess of 30 percent for asthma have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.97, Diagnostic Code 6602 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a veteran of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a veteran in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters dated in January 2001, August 2001, October 2003 and September 2004, VA notified the veteran of the information and evidence needed to substantiate and complete his initial claim for service connection and for an increased rating of that claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also generally advised the veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim, as is typically required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was not provided. The Board specifically finds, however, that the veteran is not prejudiced as he was given specific notice with respect to the elements of a basic service-connection claim and cannot be prejudiced by not receiving notice of downstream issues that are not reached by a denial of the underlying benefit. As such, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial January 2001 VCAA notice was given prior to the appealed AOJ decision, dated in May 2001. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence, affording him physical examinations, obtaining medical opinions as to the severity of disabilities, and by affording him the opportunity to give testimony before an RO hearing officer and/or the Board. In June 2004, the veteran appeared and testified at a Travel Board Hearing in Phoenix, Arizona and a transcript of that hearing is associated with the claims file. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file. Thus, the Board finds that VA has done everything reasonably possible to notify and assist the veteran and that no further action is necessary to meet the requirements of the VCAA. Therefore, the Board now turns to the merits of the veteran's claim. The veteran seeks a rating in excess of 30 percent for his service-connected asthma. He was first diagnosed as having asthma while in service in 1982 and has been treated for it since discharge from service. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Where entitlement to compensation has been established and a higher initial disability rating is at issue, as in this case, the level of disability at the time entitlement arose is of primary concern. See Fenderson v. West, 12 Vet. App. 119 (1999). The veteran's asthma is assigned a 30 percent rating under 38 C.F.R. § 4.97, Diagnostic Code 6602 (bronchial asthma). Under Diagnostic Code 6602, a 30 percent evaluation is warranted when there is evidence of an Forced Expiratory Volume at one second (FEV-1) of 56 to 70 percent of predicated value; or FEV-1/Forced vital capacity (FVC) of 56 to 70 percent of predicated value; or a Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO) (SB) of 56 to 70 percent of predicated value; or daily inhalational or oral bronchodilator therapy; or inhalational anti-inflammatory medication. A 60 percent evaluation is warranted with an FEV-1 of 40 to 55 percent of predicated value; or FEV-1/FVC of 40 to 55 percent of predicated value; at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted for FEV-1 of less than 40 percent predicted; FEV-1/FVC of less than 40 percent; more than one attack per week with episodes of respiratory failure; or the requirement of daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. The veteran is not required to meet each of the stated criteria in order for an increased rating to be assigned. Rather, he need only meet one criterion because the criteria are listed in the alternative. See Johnson v. Brown, 7 Vet. App. 95 (1994). Private treatment records, dated from December 1994 to June 2000, reflect the veteran's treatment for asthma with corticosteroids. He was specifically prescribed corticosteroids in December 1994, March 1995, May 1996, September 1996, October 1996 and June 1999. In a VA prescription profile dated from March 2000 to June 2001, the veteran's only listed prescription was for an albuterol inhaler. Upon a VA examination in May 2001, the veteran advised that he experienced hemoptysis and dyspnea upon exertion. He reported no hospitalizations due to asthma-related symptoms and treated his dyspnea with an over-the-counter inhaler. The x-ray examination revealed a minor abnormality as the veteran had some evidence of perihilar interstitium bilaterally with some parabronchial cuffing. The pulmonary function test, after use of bronchodilators, revealed a FVC of 91.3 percent, a FEV-1 of 89.4 percent and a FVC/FEV-1 ratio of 80 percent. His DLCO was 114.1 percent. The examiner confirmed the veteran's asthma diagnosis. Upon an August 2001 VA examination, the veteran advised that he was using both an albuterol inhaler (10-14 times daily) and an over-the-counter inhaler to control his asthma. He reported an increase in symptoms when exposed to warm air, humidity, or freshly cut grass. The veteran's symptoms included a dry and unproductive cough with no hemoptysis. The examiner noted that the veteran did not experience classic asthma attacks, rather he had occasional shortness of breath upon exertion. The examiner reviewed the veteran's prior pulmonary function tests and opined that they were normal, without any evidence of obstruction, and he had a normal DLCO. In the veteran's January 2002 Notice of Disagreement and July 2007 substantive appeal, he asserted that his service- connected asthma should be rated at 30 percent as he was using an inhaler daily to treat the symptoms of his asthma. In February 2003, the veteran underwent another pulmonary function test. The test revealed that the veteran's spirometry, lung volumes and diffusion capacity were within normal limits. The test results, after use of bronchodilators, revealed a FVC or 97 percent, a FEV-1 of 92 percent and a FVC/FEV-1 ratio of 78 percent. A May 2004 treatment note reflects a prescription for an albuterol inhaler, a flunisolide inhaler and a flunisolide nasal spray. At his June 2004 Travel Board Hearing, the veteran credibly testified to his asthma-related symptoms. He advised that they worsened upon exertion, but that he rarely sought a physician's treatment when the symptoms appeared. He also testified that he was reluctant to use a steroid inhaler as his sister advised him that it may not be good for his heart. He further stated that he was not currently using steroid- based inhalers. The veteran further testified that he felt his asthma had worsened over the years, and he carries his inhaler with him at all times in the event his symptoms flare up. In March 2005, the veteran underwent another VA examination. The veteran advised that he had daily problems with breathing and wheezing and he used his albuterol inhaler 6 to 8 times per day. The veteran's medical history reveals a prescription in May 2004 for a flunisolide inhaler, but the veteran advised that he had not refilled the original prescription. Again the veteran reported no hospitalization or emergency treatment for his asthma symptoms. Additionally, the veteran did not report any significant dyspnea during usual activities, but when he climbed stairs, he often proceeded slowly due to his breathing. The examiner noted that veteran arrived at the examination walking "briskly" while talking on the phone. He noted that the veteran spoke in full sentences without evidence of wheezing, cough or labored breathing and his breath sounds did not reveal any wheezing, rhonchi or crackles. The examiner noted the veteran's exclusive use of an albuterol inhaler to treat his symptoms. The x-rays revealed that the veteran had mild pulmonary emphysema. The veteran's pulmonary function testing, including his DLCO, was found to be normal. In August 2005, the veteran sought refills on his albuterol inhaler and his flunisolide oral inhaler, the prescriptions of which had expired. An August 2005 prescribed medication summary listed an albuterol inhaler, a flunisolide oral inhaler and a flunisolide nasal inhaler spray as being issued to the veteran that same month. Treatment records do not reflect that the veteran sought monthly medical treatment for his symptoms of asthma. The VA treatment records show the veteran's regular use of non- steroidal asthma medications (i.e., albuterol) as well as an occasional need for a course of systemic corticosteroid (see, for example, VA treatment records dated before the veteran's claim for service connection and those dated in May 2004 and August 2005). Although the private treatment records from 1996 reflect 3 treatments with prescriptions for corticosteroids, there is no evidence showing he had a course of systemic corticosteroid treatment at least three times a year during the period under appeal (i.e., since service connection was established). Given the evidence as outlined above, the Board finds that pulmonary function studies do not show the veteran having FEV-1 or FEV-1/FVC scores between 40and 55 percent of predicated values nor does the record show at least monthly visits to a physician or at least three courses of systemic corticosteroids a year in order for a rating higher than 30 percent to be assigned under Diagnostic Code 6602. The Board appreciates the veteran's assertions that his asthma has worsened, however, absent objective medical evidence showing a more severe restriction, a rating higher than 30 percent cannot be assigned. Consequently, the veteran's request for an increased rating for asthma must be denied. The veteran does not assert that he is totally unemployable because of his service-connected asthma, nor has he identified any specific factors which may be considered to be exceptional or unusual in light of VA's schedule of ratings. The Board has been similarly unsuccessful in locating exceptional factors. Specifically, the veteran has not required frequent periods of hospitalization for treatment of his asthma. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a) and 4.1. 38 C.F.R. § 4.1 specifically states, "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Therefore, because there is no evidence of the veteran requiring frequent periods of hospitalizations due to his asthma, the Board finds that the noncompensable evaluation currently assigned adequately reflects the clinically established impairment experienced by the veteran. In the absence of requisite factors, the criteria for submission for assignment of an extraschedular rating for this disability pursuant to 38 C.F.R. § 3.321(b)(1) are not satisfied. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Consequently, the Board will not refer this claim to the Director of Compensation and Pension for extraschedular review. ORDER An initial rating in excess of 30 percent for asthma is denied. ____________________________________________ V. L. Jordan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs