Citation Nr: 0740119 Decision Date: 12/20/07 Archive Date: 12/26/07 DOCKET NO. 07-02 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 30 percent for bronchial asthma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. McElwain, Associate Counsel INTRODUCTION The veteran had active service from November 1991 to March 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision prepared in January 2006 and issued to the veteran in February 2007 by the Department of Veterans Affairs (VA) Atlanta, Georgia, Regional Office (RO). A motion to advance this case on the Board's docket was granted under the authority of 38 U.S.C.A. § 7102(a) (West 2002) and 38 C.F.R. § 20.900(c) (2007). FINDING OF FACT The evidence indicates that the veteran's asthma results in intermittent courses of systemic corticosteroids and FEV1 predicted values of less than 55 percent, but not less than 40 percent, with no evidence of episodes of respiratory failure or FEV1/FVC value of less than 40 percent. CONCLUSION OF LAW The criteria for a rating of 60 percent, but no higher, for the veteran's asthma have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6602 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). In December 2005, the agency of original jurisdiction (AOJ) sent a letter to the veteran providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Although the VCAA notice referred to above does not specifically address the effective date that may be assigned following a grant of increased compensation, any error in failing to notify the veteran regarding assignment of an effective date for increased compensation is harmless error, since the veteran may disagree with the effective date assigned for the increased evaluation when the RO implements this decision. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VA has also done everything reasonably possible to assist the veteran with respect to her claim for benefits, such as obtaining medical records and providing a VA examination. Consequently, the Board finds that the claim is ready for adjudication. For historical purposes, the Board notes that service connection was established for bronchial asthma by the RO in February 1997 based on a VA examiner's opinion that the veteran's preexisting asthma may have been exacerbated by service. The veteran is currently rated at 30 percent for her asthma under Diagnostic Code (DC) 6602. A 60 percent rating under DC 6602 requires FEV1 (forced expiratory volume in one second) of 40 to 55 percent predicted, or; FEV1/FVC (forced vital capacity) of 40 to 55 percent; or at least monthly visits to a physician for required care of exacerbation; or intermittent (at least three times per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating requires FEV1 less than 40 percent predicted, or; FEV1/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. VA medication records indicate that the veteran was prescribed multiple day supplies of the corticosteroidal immunosuppressive Prednisone in July 2004, April 2005, December 2005, and April 2006, and the corticosteroid Fluticasone (Flovent) in July and December 2005 and March and October 2006. VA treatment and medication records also indicate that the veteran has been prescribed Albuterol, Flunisolide, Salmeterol, and a nebulizer. A November 2005 private pulmonary function test (PFT) record indicates that, after 1 effort, the veteran had a FEV1 of 79 percent predicted and a FEV1/FVC of 98 percent. After 3 efforts, the FEV1 value was 76 percent predicted and the FEV1/FVC value was 102 percent. See November 2005 Atlanta Allergy & Asthma Clinic record. The record reports the finding that the veteran had a possible early obstructive pulmonary impairment, based on the "reduced FEF 25-75" with a "normal FVC and FEV1". The record also notes that the finding could be due to a mild degree of small airway disease and/or the earliest stages of emphysema. A January 2006 VA examination record reports the veteran's history of daily asthmatic attacks, which necessitate visiting a physician as often as 4 times a month. She also reported that she contracts infection easily from her respiratory condition and that she requires antibiotics about 45 times per year, with each course of treatment being 1 week (7 days). The veteran denied any history of respiratory failure. PFTs were done, but the examiner noted that the veteran's effort was poor/submaximal. FEV1 was 31 percent predicted pre-bronchodilator and 20 percent predicted post- bronchodilator. The FVC was 37 percent pre-bronchodilator and 22 percent post-bronchodilator. The examiner stated that there was a discrepancy between the PFT findings and the clinical examination and noted that the PFT showed a normal spirometry. The examiner assessed the veteran with severe persistent asthma based on the subjective history of daily symptoms with limited physical activities and the objective evidence of a few expiratory rhonchi, use of high dose oral steroids, and daily use of Singular and Serevent. A March 2006 VA treatment record reports the finding of asthma/acute bronchitis. The record reports that the veteran was told to do a "Z Pak," and continue using the nebulizers, steroid inhaler, and Singulair. A March 2006 private treatment record reports the veteran's history of increased need for albuterol and Flovent daily. See March 2006 Atlanta Allergy & Asthma Clinic record. The veteran complained of occasional chest pain, irritation, and occasional cough productive of mucus and blood. The record notes that the veteran was diagnosed with asthma-increased, and was prescribed Prednisone for 3 days and continued on Flovent and Albuterol. The veteran was noted to have a FEV1 of 48 percent predicted after 1 effort and a FEV1 of 43 percent predicted after 3 efforts. FEV1/FVC was 91 percent after one effort and 90 percent after 3 efforts. The PFT record indicates a finding of "severely reduced forced vital capacity." See March 2006 Atlanta Allergy & Asthma Clinic record. A May 2006 VA PFT record indicates a FEV1 of 42 percent predicted and a FEV1/FVC of 64 percent. The record notes that the reduced FVC, FEV1, and FEV1/FVC ratio indicate an airflow limitation consistent with the veteran's history of asthma. The record notes that the lung volumes were mildly reduced except for the residual volume but the diffusing capacity was normal; the physician noted that these findings suggested a superimposed restrictive process. The Board finds that a 60 percent rating is warranted under DC 6602 based on the evidence of intermittent courses of systemic corticosteroids, the January 2006 VA examiner's finding of severe asthma, and the May 2006 PFT finding of a FEV1 of 43 percent predicted. A 100 percent rating is not warranted as the evidence does not suggest that the criteria for a 100 percent rating are met. The veteran's asthma does not require daily use of systemic high dose corticosteroids or immunosuppressive medications, and the veteran has not had episodes of respiratory failure. Additionally, although the January 2006 VA examination reported a FEV1 of less than 40 percent predicted, that finding was deemed inaccurate by the examiner based on evidence of submaximal effort. The other PFT results, including PFTs during a "flare-up" less than 3 months later, report FEV1 predicted values of higher than 40 percent. Based on the VA examiner's finding, with rationale, that the January 2006 PFTs are inaccurate, the Board finds that the other PFT findings of FEV1 predicted values over 40 percent are most representative of the veteran's condition. See 38 C.F.R. § 4.96. Consequently, a 60 percent rating, but no higher, is granted for the veteran's asthma. ORDER A rating of 60 percent, but no higher, for asthma is granted. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs