Citation Nr: 0809764 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 04-02 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for allergic asthma, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran served on active duty from June 1994 to June 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2003 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted a 30 percent evaluation for allergic asthma, effective from December 2002. The veteran provided testimony at a hearing before the undersigned Veterans Law Judge in February 2006, a transcript of which is of record. At the hearing, he intimated that he had developed skin problems as part of his service-connected allergic asthma. This symtomatology is not currently considered to be a part of the service-connected asthma disorder. As was previously noted by the Board in the 2006 remand, to the extent that the veteran may be seeking service connection for skin problems, secondary to a service- connected disability, this issue is referred to the RO for appropriate action. This case was previously before the Board in May 2006 at which time it was remanded for both due process concerns and for additional evidentiary development, to include affording the veteran a new VA examination. The actions requested in that remand have been undertaken and the case has returned to the Board for appellate consideration. FINDINGS OF FACT The veteran's allergic asthma is not manifested by pulmonary function tests that show either a Forced Expiratory Volume (FEV-1) at one second of between 40 and 55 percent of predicated value or the ratio of Forced Expiratory Volume at one second to Forced Vital Capacity (FEV-1/FVC) to be between 40 and 55 percent; a need for at least monthly visits to a physician for required care of exacerbations; or at least three courses of systemic corticosteroids per year. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for asthma have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.15, 4.96, 4.97, Diagnostic Code 6602 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters: Duties to Notify & to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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. 2006); 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) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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 his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Following receipt of the veteran's September 2002 claim for increase, the RO issued a duty to assist letter in October 2002 which advised the veteran of VA's duty to assist him to obtain evidence to support the increased rating claim for asthma. The letter advised the veteran that to establish entitlement for increased benefits, the evidence must show that the disability had increased in severity. The veteran was asked to identify dates and locations of treatment and of pertinent medical evidence, lay statements, employments records, etc. which support his claim, and/or to provide this information for the record himself. After the RO granted a 30 percent evaluation for asthma in a January 2003 rating action and denied an evaluation in excess of 30 percent for asthma in a February 2003 rating decision, giving rise to this appeal, VA subsequent issued duty to assist letters in September 2003 and May 2006 addressing the increased rating claim for asthma. These VCAA letters discussed the duties and responsibilities of VA and the veteran as pertains to obtaining and providing evidence in support of the claim, but did not make specific reference to the relevant diagnostic code and criteria required for an increased evaluation for asthma. However, as part of the 2003 rating decisions, the veteran was notified of the criteria for an evaluation in excess of 30 percent for asthma. Following his disagreement with the assigned evaluation, the veteran was provided with a November 2004 statement of the case (SOC) which set forth, in pertinent part, the complete text of 38 C.F.R. § 4.97, Diagnostic Code 6602, providing the criteria for schedular evaluations for asthma. Accordingly, the Board believes that the type of notice discussed in the case of Vazquez-Flores v. Peake, -- Vet. App. --, No. 05-0355, 2008 WL 239951 (Jan. 30, 2008), has been provided for the veteran. The Board notes that the September 2003 and May 2006 duty to assist letters were sent to the veteran after the January and February 2003 rating decisions. Although these letters were not sent prior to the adjudication of the appellant's claim, this was not prejudicial to him, since the claim was readjudicated thereafter and additional supplemental statements of the case (SSOC) was provided to the appellant in March 2004, May 2004 and September 2007. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Further, through his statements, the veteran has demonstrated his understanding of what is necessary to substantiate his claim, i.e., any notice defect was cured by the veteran's actual knowledge. See Sanders v. Nicholson, 487 F.3d. 881 (Fed. Cir. 2007; see also Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). In any event, the Board finds that a reasonable person could be expected to understand from the notice what was needed to substantiate the claim and thus the essential fairness of the adjudication was not frustrated. Id. As such, the Board concludes that, even assuming a notice error, that error was harmless. See Medrano v. Nicholson, 21 Vet. App. 165 (2007); Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The May 2006 letter provided such notice. There is no allegation from the claimant that he has any additional evidence in his possession, but not associated with the record, that is needed for a full and fair adjudication of the claim or that he is aware of any other evidence which might be relevant. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The Board finds that VA has also fulfilled its duty to assist the veteran in making reasonable efforts to identify and obtain relevant records in support of the veteran's claim and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2007). In this regard, the veteran's service medical records are associated with the claims folder, as well as all relevant VA and non-VA treatment records. He has provided hearing testimony in 2006. Several VA evaluations to include pulmonary function testing have been conducted between 2001 and 2006. The veteran has not identified any additional relevant, outstanding records that need to be obtained before deciding his claim. Both the duty to assist the veteran and the duty to notify the veteran have been met. Accordingly, the Board finds that there is no reasonable possibility that further assistance would aid the veteran in substantiating the claim and the veteran has not indicated that he has any additional evidence or information to provide in support of his claim. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Factual Background The veteran filed his original service connection claim for a respiratory disorder, claimed as bronchitis, in June 1999. Service connection was established for allergic asthma by a June 1999 rating decision. An initial rating of 60 percent was assigned under Diagnostic Code 6602, effective June 28, 1999. This rating decision stated that since there was a likelihood of improvement, this assigned evaluation was not considered permanent and was subject to a future review examination. Thereafter, a February 2002 rating decision proposed to reduce the assigned rating for the veteran's allergic asthma to zero percent (noncompensable), reasoning that the veteran failed to appear for a VA examination. The reduction was effectuated by a subsequent August 2002 rating decision, effective December 1, 2002. In September 2002, the veteran contacted VA requesting that VA compensation be reinstated. He reported that he was still under the care of both an allergist and an asthma specialist and noted that he was using inhalers and injections on a weekly basis. Private medical records from Allergy Associates (AA) dated in 2001 and 2002 were added to the file in March 2002. Pulmonary function testing (PFT) conducted in October 2001 revealed FEV-1 of 88 percent predicted; and FEV-1/FVC of 81 percent (actual). Records from AA also show that the veteran underwent an evaluation by Dr. P. in October 2001. The report noted that the veteran had a history of allergy and asthma symptoms since childhood, but had never been hospitalized or admitted to the emergency room due to asthma. It was reported that the veteran had symptoms of wheezing and shortness of breath for which he used Albuterol as needed. The report stated that he had used Serevent and Flovent in the past, but not for several months. The veteran complained of having a sore throat, sneezing and redness/itchiness of the eyes and nose with nasal congestion. It was observed that he had used Allegra and Flonase to treat allergy symptoms along with Tylenol Allergy/Sinus. The doctor observed that PFT revealed some decrease in small and large airway flow, without improvement post-bronchodilator. The examiner concluded that it appeared that the veteran had allergic rhinitis, reactive airway disease and possibly a food allergy to shellfish. He was started on Advair 250/50, one puff a day, with Albuterol every 4 to 6 hours as needed. Daily doses of Flonase and Allegra were also recommended and it was commented that the veteran was to be started on immunotherapy for allergens. A VA respiratory examination was conducted in November 2002, and the claims folder was not available for review. The veteran reported that he had a productive cough and experienced dyspnea on exertion at 1/4 block. He stated that he experienced asthmatic attacks about once a month lasting for up to 4 days, as well as having trouble breathing at night. The veteran reports that when he experiences an exacerbation he goes to the emergency room for "IPTB" treatment and medications and is typically off his job or out of school for 1 to 4 days. Treatment regiment was described as Albuterol, Advair and Allegra D. PFT was not conducted. A chest X-ray film was normal. A diagnosis of allergic asthma was made. In a January 2003 rating action, a 30 percent evaluation was assigned for allergic asthma under DC 6602, effective from December 2002. Thereafter, the results of VA PFT conducted in December 2002 and January 2003 were received for the record. PFT conducted in December 2002 revealed FEV-1 of 103 percent predicted; and an FEV-1/FVC ratio of 83 percent. The results were interpreted as a normal study. PFT conducted in January 2003 revealed FEV-1 of 84 percent predicted; and an FEV-1/FVC ratio of 72 percent. The results were interpreted as a normal study. In a February 2003 rating action, a 30 percent evaluation was continued. Records from Student Health Services show that the veteran was seen in November 1999 for a prescription refill of Provental for treatment of diagnosed asthma. The veteran completed a health history form in November 2002 indicating that he was taking Allegra-D and Advair. A VA medication list indicates that from January 2003 to January 2004 an oral steroid identified as Fluticasone, had been prescribed. The record reflects that the veteran failed to report for a VA examination scheduled for February 2004. However, a report of contact on file shows that the veteran contacted VA prior to the examination to reschedule it. A VA respiratory examination was conducted in March 2004 and the claims file was reviewed. The report indicated that the veteran had been hospitalized a couple of times since 1994 for treatment of allergic reactions to shellfish. It was noted that during the previous year, the veteran had continued to take a nebulizer and atomizer everyday due to asthma attacks occurring on a weekly basis, but that he was no longer taking steroids. The examiner reported that during the past 6 months, the veteran has seen a doctor 2 to 3 times, for symptoms of airway obstruction, for which he received steroidal treatment. An impression of moderately severe allergic bronchial asthma, with daily symptoms was made. The examiner commented that this was being controlled with bronchodilators and nebulizers, so that the veteran's condition could be slightly worse. PFT conducted in March 2004 revealed FEV-1 of 68 percent predicted; and an FEV-1/FVC ratio of 79 percent, pre-drug; and FEV-1 of 81 percent predicted; and an FEV-1/FVC ratio of 77 percent, post-drug. The results were interpreted as showing obstructive pattern with mild impairment, with diffusion within normal limits. Significant bronchodilator response was noted. The veteran presented testimony at a travel Board hearing held in February 2006. The veteran testified that his asthma was being treated with steroids, allergy medications and inhalers. He mentioned that he used 3 different types of inhalers on a daily basis for prevention of asthma attacks. The veteran indicated that he last saw a doctor in 2003 for treatment with steroids. At the hearing, the veteran contended that the most recent VA examination was inadequate because the results were obtained after he took medication to control symptoms. VA medical records dated from 2004 to 2006 show that the veteran's respiratory symptoms were being treated with Loratadine, Albuterol, Advair, and Floradil. PFT conducted by VA in June 2006 revealed FEV-1 of 71 percent predicted; and an FEV-1/FVC ratio of 67 percent, pre-drug; and FEV-1 of 89 percent predicted and an FEV-1/FVC ratio of 79 percent, post-drug. The results were interpreted as showing obstructive pattern with mild impairment, and significant bronchodilator response. A VA examination was conducted in November 2006. The veteran complained of symptoms of chest tightness or asthma at night or overnight, treated with an inhaler. It was noted that he had not been on systemic or oral steroids, and had been on allergy desynthesizing shots in the past, which was discontinued due to loss of private insurance. Symptoms of rhinitis were apparent on physical examination. The examiner's impression was poorly controlled asthma and allergic rhinitis. The examiner explained that for some reason, the veteran had been taken off medications that were more effective for him, and that he was more symptomatic as a result. The examiner commented that the veteran's asthma management was unacceptable, as he was having to use his rescue inhaler about twice a day. The examiner referenced PFT done in June 2006 which showed obstructive pattern, mild impairment and significant bronchodilator response and observed that the test results were consistent with a diagnosis of asthma. In an addendum added in December 2006, the examiner indicated that the claims folder had been reviewed which warranted no change to the impression made in November 2006. Legal Analysis The veteran contends that the severity of his allergic asthma warrants a rating in excess of the 30 percent evaluation currently assigned. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, the Court recently held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran is currently assigned a 30 percent disability rating for his allergic asthma effective from December 1, 2002. Under 38 C.F.R. § 4.97, Diagnostic Code 6602, a 30 percent rating for bronchial asthma requires FEV-1 (Forced Expiratory Volume in one second) of 56 to 70 percent predicted, or; FEV-1/FVC (Forced Expiratory Volume in one second to Forced Vital Capacity) of 56 to 70 percent, or; daily inhalation or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted with 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. A note to the code indicates that in the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record. 38 C.F.R. § 4.97, Diagnostic Code 6602. 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). The Board further notes that effective October 6, 2006, 38 C.F.R. § 4.96 was amended to clarify the use of pulmonary function tests when rating under diagnostic codes such as Diagnostic Code 6602 pursuant to which the veteran's asthma has been evaluated. See 71 Fed. Reg. 52,457 (2006), currently codified in pertinent part at 38 C.F.R. § 4.96(d)(4) (2007). The Board observes that Section 4.96(d)(4) provides that post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post- bronchodilator studies should not be done and states why. When the evidence of record is reviewed in light of the schedular criteria set forth above, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent. Pulmonary function studies do not show the veteran had (FEV-1) at one second of between 40 and 55 percent of predicated value, or a ratio of Forced Expiratory Volume at one second to Forced Vital Capacity (FEV-1/FVC) between 40 and 55 percent at any time when tested between 2001 and 2006. Rather, the veteran had FEV-1 and FEV-1/FVC scores which were repeatedly in the 70s and 80s, post- bronchodilation. While VA treatment records show that the veteran, in his worst year, sought treatment for asthma on several occasions, they do not show at least monthly visits to VA (i.e., twelve or more visits a year). Similarly, 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, such as prescribed Advair/Fluticasone to treat his asthma. However, the evidence does not show the veteran having courses of systemic corticosteroid at least three times a year. A close review of the record does not reveal any distinct period during which a schedular rating in excess of 30 percent for allergic asthma is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the preponderance of the evidence is against a claim for an increased evaluation. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An evaluation in excess of 30 percent for allergic asthma is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs