Citation Nr: 0810868	
Decision Date: 04/02/08    Archive Date: 04/14/08

DOCKET NO.  06-10 664	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an initial disability rating in excess of 10 
percent for service connected asthma.  


REPRESENTATION

Appellant represented by:  Texas Veterans Commission


ATTORNEY FOR THE BOARD

Kathy Diener, Associate Counsel


INTRODUCTION

The veteran served on active duty from April 1982 to March 
1986 and May 2002 to September 2002.  
This matter comes before the Board of Veteran's Appeals 
(Board) on appeal from a December 2005 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Waco, Texas, which granted service connection for asthma and 
awarded an initial evaluation of 10 percent.


FINDING OF FACT

The veteran's bronchial asthma is manifested by a post-
medication Forced Expiratory Volume (FEV-1) of 88 percent of 
predicted and a FEV-1/Forced Vital Capacity (FVC) of 81 
percent.

CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent 
for bronchial asthma are not met.  38 U.S.C.A. §§ 1155, 5103, 
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.97, DC 
6602 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

Before assessing the merits of the appeal, VA's duties under 
the Veterans Claims Assistance Act of 2000 (VCAA) must be 
examined.  The VCAA describes VA's duty to notify and assist 
claimants in substantiating a claim for VA benefits.  38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 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, VA must notify the claimant of the 
information and evidence not of record that is necessary to 
substantiate a claim, which information and evidence VA will 
obtain, and which information and evidence the claimant is 
expected to provide.  38 U.S.C.A. § 5103(a).  VA must request 
that the claimant provide any evidence in the claimant's 
possession that pertains to a claim.  38 C.F.R. § 3.159.

The RO provided the appellant with notice by letters dated in 
June 2005 and March 2006.  The notification substantially 
complied with the requirements of Dingess v. Nicholson, 19 
Vet. App. 473 (2006), identifying the five elements of a 
service connection claim, and Pelegrini v. Principi, 18 Vet. 
App. 112 (2004), requesting the claimant to provide evidence 
in his or her possession that pertains to the claims.

In this case, the veteran was awarded service connection for 
asthma and assigned a disability rating and an effective date 
in the December 2005 rating decision on appeal.  Thus, the 
claim was substantiated in December 2005.  Therefore, 
following that decision, VA had no further duty to notify the 
veteran how to substantiate his claim pursuant to 38 U.S.C.A. 
§ 5103(a) or 38 C.F.R. § 3.159 (b); the purpose of the notice 
had been served.  See Dingess, 19 Vet. App. at 493.

The Board notes that neither of the letters discussed the 
criteria for an increased rating.  See Quartuccio v. 
Principi, 16 Vet. App. 183 (2002); Vasquez-Flores v. Peake, 
22 Vet. App. 37 (2008).  

Any error by VA in providing the notice required by 38 U.S.C. 
§ 5102(a) and 38 C.F.R. § 3.159(b)(1) is presumed 
prejudicial, and once an error is identified as to any of the 
four notice elements the burden shifts to VA to demonstrate 
that error was not prejudicial to the appellant.  Sanders v. 
Nicholson, 487 F.3d 881 (Fed. Cir. 2007).  

The Board finds, however, that any content-related notice 
errors did not affect the essential fairness of the 
adjudication of the claim decided herein.  The veteran was 
provided with a statement of the case (SOC) in March 2006, 
which identified the criteria for bronchia asthma disability 
ratings at each level.  In his March 2006 appeal, the veteran 
indicated that he had read these criteria in the SOC.  He 
referred to 38 C.F.R. § 4.7 and stated that he believed his 
symptoms to be consistent with a rating of 30 percent.  This 
demonstrates that the veteran had actual knowledge of the 
evidence needed to substantiate his claim, of the right to 
submit additional evidence, and of the availability of 
additional process.  Thus, the Board finds that no prejudice 
to the veteran will result from proceeding with adjudication 
without additional notice or process.  Id.  

VA has obtained service medical records (SMRs), assisted the 
veteran in obtaining evidence, afforded the veteran physical 
examinations, and obtained medical opinions as to the 
etiology and severity of disabilities.  All known and 
available records relevant to the issues on appeal have been 
obtained and associated with the veteran's claim file; and 
the veteran has not contended otherwise.

VA has substantially complied with the notice and assistance 
requirements and the veteran is not prejudiced by a decision 
on the claim at this time.  

Rating Criteria and Analysis

Disability ratings are based upon VA's Schedule for Rating 
Disabilities as set forth in 38 C.F.R. Part 4.  The 
percentage ratings represent as far as can practicably be 
determined the average impairment in earning capacity in 
civil occupations.  38 U.S.C.A. § 1155.  The disability must 
be viewed in relation to its history.  38 C.F.R. § 4.1.  A 
higher evaluation shall be assigned where the disability 
picture more nearly approximates the criteria for the next 
higher evaluation.  38 C.F.R. § 4.7 (2007).

Following an initial award of service connection for a 
disability, separate ratings can be assigned for separate 
periods of time based on facts found.  Fenderson v. West, 12 
Vet. App. 119, 126 (1999).  It is the policy of VA to 
administer the law under a broad interpretation, consistent 
with the facts in each case, with all reasonable doubt to be 
resolved in favor of the claimant.  38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102.

The veteran's asthma is currently rated as 10 percent 
disabling under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6602.  
Under the regulations, a 10 percent evaluation is warranted 
for asthma when there is FEV-1 of 71 to 80 percent predicted 
or 
FEV-1/FVC of 71 to 80 percent, or intermittent inhalational 
or oral bronchodilator therapy.

A 30 percent evaluation is warranted for asthma when there is 
FEV-1 of 56 to 70 percent predicted or FEV-1/FVC 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 (2007).

A 60 percent rating is warranted for asthma when there is 
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 exacerbations, or intermittent (at least three 
per year) courses of systemic (oral or parenteral) 
corticosteroids.  Id.

A 100 percent evaluation is warranted when there is 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 immuno-
suppressive medications.  Id.

The claim file contains the results of a pulmonary 
functioning test (PFT) conducted by T. K., M.D. in September 
2002, in which the veteran's FEV-1 was 88 percent of 
predicted, and his FEV-1/FVC ratio was 98 percent.  Dr. K.'s 
notes indicate that the veteran reported using an Albuterol 
inhaler twice daily intermittently.  He prescribed Singulair 
and Advair to be used twice daily, with the Albuterol inhaler 
to be used as a rescue inhaler as needed.  The doctor's 
records show that he continued to prescribe these medications 
for the veteran through March 2004.  In January 2005, his 
records note that "for the last two years [the veteran] has 
not used Advair or a rescue drug," and he was "doing well 
on only Singulair."  In a January 2005 letter, the doctor 
reported that the veteran had undergone a PFT that month in 
which his FEV-1 was 97 percent of predicted and his FEV-1/FCV 
ratio was 81 percent.  He described the veteran as 
asymptomatic.

The veteran underwent a PFT at VA facility in August 2005, at 
which time his FEV-1was 86 percent of predicted, and his FEV-
1/FCV ratio was 108 percent.  The record notes that he used 
Singulair and Albuterol.  

The veteran underwent a PFT at a VA facility in February 
2006.  The veteran's FEV-1 was 93 percent of predicted, and 
his FEV-1/FCV ratio was 77 percent.  He reported using 
Albuterol once or twice a week.  

The veteran underwent a VA evaluation in March 2007.  His 
FEV-1 was 88 percent of predicted, and his FEV-1/FCV ratio 
was 81 percent.  He reported using his Albuterol inhaler 
several nights a week, two weeks out of the month.

The Board finds that an evaluation in excess of 10 percent is 
not warranted for the veteran's asthma.  On every PFT of 
record, both his FEV-1 and FEV-1/FVC ratio have remained 
above 71 percent, and, since at least January 2005, he has 
used oral bronchodilator therapy only intermittently.  The 
veteran does take Singulair daily, but there is no evidence 
of daily inhalational anti-inflammatory medication or use of 
corticosteroids.  

In his March 2006 appeal, the veteran contends that he uses 
his Albuterol inhaler daily and thus is entitled to a rating 
of 30 percent.  Of the medical evaluations the veteran has 
undergone, only the assessment from September 2002 shows that 
he used his inhaler "about twice daily intermittently."  
This is the earliest record of the veteran's receiving 
treatment for asthma from his private physician, and it 
indicates that he first began taking Singulair and Advair at 
that time.  The doctor noted that he expected the veteran to 
become symptom-free with these medications, and, in fact, he 
found the veteran to be asymptomatic in January 2005, with no 
inhaler usage for the previous two years.  None of the 
examinations performed since January 2005 indicates that he 
used his inhaler more than a few times per week, and his 
private physician advised him to use it as needed.  The Board 
finds that the veteran's contention of daily inhaler use is 
outweighed by the medical reports indicating less frequent 
use. 

Based upon the evidence in the veteran's claims folder, the 
Board finds that the veteran's asthma does not approach the 
level required for the assignment of a disability evaluation 
in excess of the currently assigned 10 percent for any period 
of time since the claim was filed.  


ORDER

An initial disability rating in excess of 10 percent for 
asthma is denied.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs