Citation Nr: 0844107 Decision Date: 12/22/08 Archive Date: 12/31/08 DOCKET NO. 07-06 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE 1. Entitlement to a rating in excess of 30 percent for bronchial asthma for the period of January 9, 2006 to November 3, 2007. 2. Entitlement to a rating in excess of 60 percent for bronchial asthma from November 4, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The veteran served on active duty from January 1982 to March 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Appellant opened the claim for an increased rating in January 2006. During the course of the appeal, a 60 percent rating was granted as of November 2007. The issues on the title page have been recharacterized to reflect the issues currently on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Prior to November 3, 2007, the veteran's asthma is not characterized by pulmonary function studies showing a forced expiratory volume in one second (FEV-1) of 40 to 55 percent predicted, or; by the ratio of forced expiratory volume to forced vital capacity (FEV-1 /FVC) being 40 to 55 percent, or; by at least monthly visits to a physician for required care of exacerbations, or; by a need for intermittent (at least three times per year) courses of systemic (oral or parenteral) corticosteroids. 2. After November 7, 2004, the veteran's asthma is not characterized by pulmonary function studies showing a FEV-1 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 prenteral) high dose corticosteroid or immuno-suppressive medications. CONCLUSIONS OF LAW 1. Prior to November 3, 2007, the criteria for a rating 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. §§ 3.159, 4.1, 4.97, Diagnostic Code 6602 (2008). 2. After November 4, 2007, the criteria for a rating in excess of 60 percent for asthma have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.97, Diagnostic Code 6602 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA did fail to fully comply with the provisions of 38 U.S.C.A. § 5103 prior to the rating decision in question. The record, however, shows that any prejudice that failure caused was cured by the fact that VA notified the veteran in February 2006 and June 2006, as well as the January 2007 statement of the case of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The statement of the case specifically informed the veteran of the rating criteria which would provide a basis for an increased rating. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. Additionally, the letter dated June 2008 provided adequate notice of how effective dates are assigned. The claim was readjudicated in the July 2008 supplemental statement of the case. The claimant was been afforded a meaningful opportunity to participate in the adjudication of the claims, and in the statement of the case he was provided actual notice of the rating criteria used to evaluate the disorders at issue. The claimant was provided the opportunity to present pertinent evidence in light of the notice provided. Because the veteran has actual notice of the rating criteria, and because the claim has been readjudicated no prejudice exists. There is not a scintilla of evidence of any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, neither the appellant nor his representative have suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Analysis By a Board decision dated September 1997, the Board granted service connection for bronchial asthma. A December 1997 rating decision by the RO implemented the Board's decision granting service connection for bronchial asthma, and assigned a noncompensable rating, effective March 1, 1990. An August 1998 rating decision granted an increased rating to 10 percent for bronchial asthma, effective March 1, 1990. A July 1999 rating decision further increased the veteran's 10 percent rating to 30 percent, effective April 7, 1999. A May 2001 Board decision, implemented by a September 2001 RO rating decision, granted the veteran a rating of 30 percent for bronchial asthma, effective January 15, 1998. As noted above, in January 2006, the veteran submitted a claim for an increased rating for bronchial asthma and an April 2006 rating decision denied the claim. The veteran appealed asserting that his asthma warranted a higher rating. On appeal, by a January 2008 rating decision, the RO granted the veteran an increased rating of 60 percent for his asthma, effective November 4, 2007. The veteran chose to continue his appeal, asserting that his condition warranted a 100 percent rating. VA treatment records dated August to September 2006 reflected hospitalization for opiate dependence. The discharge report indicated that the veteran needed smoking cessation counseling and Lev-albuterol inhalers. Treatment records dated November 2006 to January 2008 primarily reflected treatment substance abuse, but did indicate some treatment for asthma. The records also revealed that the veteran was prescribed albuterol, levalbuterol, and combivent to treat his asthma. The veteran was afforded a VA examination in November 2007 for his asthma. The veteran complained of a chronic cough with frequent green sputum and occasional blood. He reported exacerbation of his asthma approximately one time per week. The veteran used a combivent inhaler about four times a day and an albuterol inhaler about once or twice a day as needed. During exacerbations the veteran reported using albuterol up to four or five times a day. He also stated that he borrowed his girlfriend's nebulizer and additional albuterol during flares. The examiner noted that the veteran denied a history of hospitalizations for asthma and his last trip to the emergency room for asthma was about one year ago. On examination lungs were clear to auscultation and percussion in all fields. There was normal excursion of the lungs bilaterally. Respiratory rate was 20 breaths per minute and pulmonary function tests showed a moderately severe to severe impairment with both obstruction and restriction. The examiner provided a diagnosis of asthma. Pulmonary Function Tests performed in conjunction with the VA examination showed pre-medication scores of a FVC of 51 percent, a FEV-1 of 46 percent and a FEV-1/FVC of 69 percent. The veteran was afforded a hearing in October 2008 before the undersigned veterans law judge. The veteran testified that he had respiratory attacks about once a day, with episodes of respiratory failure. He described his symptoms as chest pains, and feeling like he couldn't breathe. To manage his symptoms he took albuterol, Combivent and prednisone in pill form, as well as used a nebulizer. The veteran stated that he could not walk up stairs or more than a couple of blocks without feeling out of breath or needing to use his inhalers. The veteran also testified that he could no longer do his job as a machinist because certain chemicals he used would trigger an attack. He also stated that he had not worked in four or five years. The present appeal involves the veteran's claim that the severity of his service-connected asthma warrants higher disability ratings. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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. 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 condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. During the pendency of the appeal, VA amended 38 C.F.R. § 4.96, Special provisions regarding evaluation of respiratory conditions, effective October 6, 2006. The Board notes that this amendment applies only to Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845. As the veteran is currently rated under Diagnostic Code 6602, the changes in the regulation do not apply to the instant claim. Under 38 C.F.R. § 4.97, Diagnostic Code 6602, a 100 percent evaluation is warranted for bronchial asthma with FEV-1 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 corticosteroid or immuno- suppressive medications. A 60 percent evaluation is warranted with FEV-1 of 40 to 55 percent predicted, or; with a 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 times per year) courses of systemic (oral or parenteral) corticosteroids. A 30 percent evaluation is warranted with a FEV-1 of 56-70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. As noted above, the veteran is currently rated at 30 percent under 38 C.F.R. § 4.97, Diagnostic Code 6602 for the period prior to November 3, 2007. Unfortunately, after review of the record, there is no evidence to support a higher rating of 60 percent as there is no evidence of PFTs showing a FEV-1 of 40 to 55 percent predicted, or; with a 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 times per year) courses of systemic (oral or parenteral) corticosteroids. While the record contains VA treatment records dated August 2006 to March 2007, the records dated August to September 2006 reflected hospitalization for opiate dependence. The discharge report indicated that the veteran needed smoking cessation counseling and Lev-albuterol inhalers. Treatment records dated November 2006 to March 2007 primarily reflected treatment substance abuse, but did note some treatment for asthma. Significant symptoms warranting an increase were not shown, however. For the period from November 4, 2007 forward, the veteran is currently rated at 60 percent under 38 C.F.R. § 4.97, Diagnostic Code 6602. A November 2007 VA examination revealed PFTs showed pre-medication scores of a FVC of 51 percent, a FEV-1 of 46 percent and a FEV-1/FVC of 69 percent. Additionally, the VA examiner noted that the veteran used albuterol and combivent to treat his asthma, as well as occasionally borrowed his girlfriend's nebulizer. VA treatment records during this time period also revealed that the veteran was prescribed albuterol, levalbuterol and combivent to treat his asthma. Records did not show, however, that the veteran was ever prescribed prednisone in pill form, or a nebulizer, despite his testimony that he was prescribed both by the VA during his hearing. Objective findings do not warrant a rating in excess of 60 percent. Moreover, while the veteran testified during his hearing that he had respiratory attacks with episodes of respiratory failure at least once a day, as a lay person, the veteran lacks the capacity to provide evidence that requires specialized knowledge, skill, experience, training, or education. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). If the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). In the instant case, there is no evidence in the VA treatment records that the veteran was ever treated for a respiratory attack or episodes of respiratory failure. Additionally, the November 2007 VA examiner noted that the veteran reported exacerbations of asthma occurring about once weekly, as well as noted that the veteran denied a history of hospitalizations for asthma with his last trip to the emergency room for asthma being about one year ago. As such, there is no objective evidence to show that the veteran had PFTs showing a FEV-1 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; required daily use of systemic (oral or prenteral) high dose corticosteroid or immuno-suppressive medications. Thus, an evaluation of 100 percent is not warranted for any time during the appeal period. There are no contentions advanced nor does the evidence demonstrate that the asthma is so unusual or abnormal to render application of the regular schedular provisions impractical. As such, there is no basis to apply the provisions of 38 C.F.R. § 3.321. While the veteran asserts he can not do his old job because of the asthma, it is not shown, nor is there objective evidence on file that he is unable to work in any position solely due to the service connected disorder. Thus, further extraschedular consideration is not indicated. Under the circumstances in the instant case, the Board must find that the preponderance of the evidence is against the claim for increased rating for bronchial asthma; the benefit of the doubt doctrine is inapplicable and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 30 percent is not warranted for bronchial asthma for the period of January 9, 2006 to November 7, 2007. A rating in excess of 60 percent is not warranted for bronchial asthma for the period after November 4, 2007. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs