Citation Nr: 0929881	
Decision Date: 08/10/09    Archive Date: 08/14/09

DOCKET NO.  06-20 768	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, 
New York


THE ISSUE

Entitlement to an increased evaluation for asthma, currently 
evaluated as 30 percent disabling.  


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Tressa J. Gill, Associate Counsel





INTRODUCTION

The Veteran had active service from October 1955 to July 
1958.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an October 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Buffalo, New York, which denied the benefit sought on appeal.  
In the October 2005 rating decision, the RO confirmed the 30 
percent rating previously assigned to the Veteran's service-
connected asthma; the disability was originally granted 
service connection in July 1958.  The Veteran's disagreement 
with the denial of an increased rating led to this appeal.  
See 38 C.F.R. § 20.201.  He subsequently perfected an appeal 
of the issue.  See 38 C.F.R. § 20.200.

This matter was previously remanded by the Board in May 2008 
for further evidentiary development, to include a VA 
examination, which has been completed, and to obtain any 
outstanding medical records since November 2004, the date of 
the claim.  As explained below, the purposes of this remand 
have been met to the extent necessary.  

The Veteran testified before the undersigned Veterans Law 
Judge in June 2009.  A transcript of this hearing has been 
associated with the claims file.  

In a June 2009 statement, the Veteran waived his right to 
have newly submitted evidence reviewed by the RO.  


FINDINGS OF FACT

1.  All evidence necessary to decide the claim has been 
obtained; the Veteran has been provided notice of the 
evidence necessary to substantiate his claim and has been 
notified of what evidence he should provide and what evidence 
VA would obtain; and the RO has obtained all relevant 
evidence to the extent possible.  

2.  The Veteran's service-connected bronchial asthma remains 
symptomatic; however, it does not necessitate at least three 
courses of systemic (oral or parenteral) corticosteroids per 
year; or at least monthly visits to a physician for required 
care of exacerbations; and pulmonary function tests (PFT's) 
in recent years do not show Forced Expiratory Volume in one 
second (FEV-1) equal to or less than 40 to 55-percent 
predicted, or; the ratio of FEV-1 to Forced Vital Capacity 
(FVC) equal to or less than 40 to 55-percent.  


CONCLUSION OF LAW

1.  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 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 
4.1-4.16, 4.96, 4.97, Diagnostic Code 6602 (2008).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act

On November 9, 2000, the President signed into law the VCAA.  
See Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 
38 U.S.C.A.  §§ 5102, 5103, 5103A, 5107 (West 2002).  The 
VCAA provides, among other things, for notice and assistance 
to VA claimants under certain circumstances.  VA has issued 
final rules amending its adjudication regulations to 
implement the provisions of the VCAA.  See generally 38 
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).  The intended 
effect of these regulations is to establish clear guidelines 
consistent with the intent of Congress regarding the timing 
and the scope of assistance VA will provide to a claimant who 
files a substantially complete application for VA benefits or 
who attempts to reopen a previously denied claim.

In order to be consistent with 38 U.S.C.A. § 5103(a) and 38 
C.F.R. § 3 159(b), VCAA notice must:  (1) inform the claimant 
about the information and evidence not of record that is 
necessary to substantiate the claim; (2) inform the claimant 
about the information and evidence that VA will seek to 
provide; and (3) inform the claimant about the information 
and evidence the claimant is expected to provide.

The Board finds that VA has met these duties with regard to 
the claim adjudicated on the merits in this decision.  There 
is no issue as to providing an appropriate application form 
or completeness of the application.  The Veteran was issued 
VCAA notification letters in December 2004, July 2005, and 
June 2008.  The Veteran was informed about the information 
and evidence not of record that is necessary to substantiate 
his claim; the information and evidence that VA will seek to 
provide; and the information and evidence the claimant is 
expected to provide.  

The instant claim before the Board is a claim for an 
increased rating.  In Vazquez-Flores v. Peake, 22 Vet. App. 
37 (2008), the United States Court of Appeals for Veterans 
Claims (Court) detailed the notification requirements in 
increased rating claims.  In Vazquez-Flores, the Court found 
that, at a minimum, adequate VCAA notice requires that VA 
notify the claimant that to substantiate such a claim: (1) 
the claimant must provide, or ask VA to obtain, medical or 
lay evidence demonstrating a worsening or increase in 
severity of the disability and the effect that worsening has 
on the claimant's employment and daily life; (2) if the 
diagnostic code under which the claimant is rated contains 
criteria necessary for entitlement to a higher disability 
rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect of that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant; (3) 
the claimant must be notified that, should an increase in 
disability be found, a disability rating will be determined 
by applying relevant diagnostic codes; and (4) the notice 
must also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask VA to obtain) 
that are relevant to establishing entitlement to increased 
compensation.  

In June 2008 the Veteran received a Vazquez-Flores letter 
that notified him of these new requirements.  Such notice 
included the applicable rating criteria.  It is also 
pertinent to note that the Veteran has demonstrated actual 
knowledge of what is required to substantiate the claim in 
question.  See e.g., copy of applicable criteria for rating 
asthma found in 38 C.F.R. § 4.97, which was submitted by the 
Veteran and received by the RO in December 2006; statements 
from the Veteran, received by the RO in December 2006, 
September 2007; June 2008 and November 2008, wherein the 
Veteran addressed the applicable rating criteria; and 
transcript of Board hearing testimony presented by the 
Veteran before the undersigned in June 2009.  See also 
Vazquez-Flores, 22 Vet. App. at 48 ("(a)ctual knowledge is 
established by statements or actions by the claimant or the 
claimant's representative that demonstrate an awareness of 
what was necessary to substantiate his or her claim.") 
(citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007).

In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini 
II), the Court held, in part, that a VCAA notice, as required 
by 38 U.S.C. § 5103(a), must be provided to a claimant before 
the initial unfavorable agency of original jurisdiction (AOJ) 
decision on a claim for VA benefits.  The December 2004 and 
July 2005 VCAA letters were issued before the October 2005 
decision on appeal.  However, the Vazquez-Flores letter was 
not timely.  The RO cured the timing defect by providing an 
October 2008 supplemental statement of the case (SSOC).  The 
Court has held recently that a SSOC that complies with 
applicable due process and notification requirements 
constitutes a readjudication decision.  See Mayfield v. 
Nicholson, 20 Vet. App. 537, 541-42 (2006) (Mayfield III).  
As the SSOC complied with the applicable due process and 
notification requirements for a decision, it constitutes a 
readjudication decision.  Accordingly, the provision of 
adequate notice followed by a readjudication "cures" any 
timing problem associated with inadequate notice or the lack 
of notice prior to an initial adjudication.  Mayfield III, 20 
Vet. App. at 541-42, citing Mayfield v. Nicholson, 444 F.3d 
1328, 133-34 (Fed. Cir. 2006) (Mayfield II).  

The Veteran has been provided the opportunity to respond to 
VA correspondence and over the course of the appeal has had 
multiple opportunities to submit and identify evidence.  
Furthermore, he has been provided a meaningful opportunity to 
participate effectively in the processing of his claim by VA.  
Neither the Veteran nor his representative has pled error 
with respect to content or timing of VCAA or Vazquez notice.  
It is pertinent to note that, while the U.S. Court of Appeals 
for the Federal Circuit previously held that any error in 
VCAA notice should be presumed prejudicial, and that VA must 
bear the burden of proving that such an error did not cause 
harm (Sanders v. Nicholson, 487 F.3d 881 (2007)), the U.S. 
Supreme Court has recently reversed that decision, finding it 
unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides 
that, in conducting review of decision of the Board, a court 
shall take due account of rule of prejudicial error.   The 
Supreme Court in essence held that-except for cases in which 
VA has failed to meet the first requirement of 38 C.F.R. § 
3.159(b) by not informing the claimant of the information and 
evidence necessary to substantiate the claim-the burden of 
proving harmful error must rest with the party raising the 
issue, the Federal Circuit's presumption of prejudicial error 
imposed an unreasonable evidentiary burden upon VA and 
encouraged abuse of the judicial process, and determinations 
on the issue of harmless error should be made on a case-by-
case basis.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The Board also finds that all necessary assistance has been 
provided to the Veteran.  As noted above, this matter was 
previously remanded by the Board in May 2008 for further 
evidentiary development, to include obtaining any outstanding 
medical records dated proximate to or after November 2004, 
the date of the claim.  After receiving the necessary medical 
release forms from the RO, the Veteran, in a June 2008 
statement, reported that he had already submitted the medical 
release forms.  The record confirms that he did submit the 
medical release forms in January 2005 as contended.  However, 
as explained on his March 2006 VCAA notice response, the 
first record of the treatment in question is 15 years ago, 
and the second dates back to the 1970s.  Although none of 
these treatment records that might be available have been 
obtained, they are well outside the timeframe of the claim.  
In an increased rating claim, VA generally focuses on the 
evidence concerning the state of the disability from the time 
period one year before the claim was filed until VA makes a 
final decision on the claim.  See Hart v. Mansfield, 21 Vet. 
App. 505 (2007).  

The evidence of record includes private and VA medical 
records, including reports of pulmonary examinations in July 
2005 and September 2008, and numerous pulmonary function 
studies, which provided findings that are adequate for rating 
purposes.  After a review of this evidence, the Board finds 
that the medical records provide competent, non-speculative 
evidence regarding the current severity of the Veteran's 
asthma.  Under these circumstances, there is no duty to 
provide another examination or a medical opinion.  38 C.F.R. 
§§ 3.326, 3.327.

In view of the foregoing, the Board finds that VA has 
fulfilled its duty to notify and to assist the Veteran in the 
claim under consideration.  Adjudication of the claim for an 
increased rating at this juncture, without directing or 
accomplishing any additional notification and/or development 
action, poses no risk of prejudice to the Veteran.  Bernard 
v. Brown, 4 Vet. App. 384, 394 (1993). 

Law and Regulations

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).  

While the Veteran's entire history is reviewed when making a 
disability determination, where service connection has 
already been established and increase in the disability 
rating is at issue, it is the present level of the disability 
that is of primary concern.  Francisco v. Brown, 7 Vet. App. 
55 (1994).  However, in Hart v. Mansfield, 21 Vet. App. 505 
(2007), the Court 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.

It is the defined and consistently applied policy of VA to 
administer the law under a broad interpretation, consistent, 
however, with the facts shown in every case.  Any reasonable 
doubt regarding the degree of disability is resolved in favor 
of the Veteran.  See 38 C.F.R. § 4.3.  The regulations also 
provide that 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.  38 C.F.R. § 4.7.

The Board notes that the evaluation of the same disability 
under various diagnoses is to be avoided.  That is to say 
that the evaluation of the same manifestation under different 
diagnoses, a practice known as "pyramiding," is to be 
avoided.  See 38 C.F.R. § 4.14.  The critical inquiry in 
making such a determination is whether any of the 
symptomatology is duplicative or overlapping.  See Esteban v. 
Brown, 6 Vet. App. 259 (1994).

Asthma is evaluated based on the results of PFT's, conducted 
after a bronchodilator is used.  38 C.F.R. § 4.96.

Diagnostic Code (DC) 6602 provides ratings for bronchial 
asthma.  FEV-1 of 71- to 80-percent predicted value, or; the 
ratio of FEV-1/FVC of 71 to 80 percent, or; intermittent 
inhalational or oral bronchodilator therapy, is rated 10 
percent disabling.  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, is rated 30 percent disabling.  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, is 
rated 60 percent disabling.  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 
corticosteroids or immuno-suppressive medications, is rated 
100 percent disabling.  A Note to Diagnostic Code 6602 
provides that, in the absence of clinical findings of asthma 
at the time of examination, a verified history of asthmatic 
attacks must be of record.  38 C.F.R. § 4.97.

Factual Background

The Veteran contends, in essence, that his bronchial asthma 
has worsened and warrants a 60 or 100 percent rating.  His 
November 2004 claim for an increased rating specified that he 
was taking the following medications:  Theolair, albuterol, 
Tedral, Advair Diskus, Clarvent, and Singular.  

A November 2004 PFT taken by a private physician showed his 
FEV-1 was 96 percent, and his FEV-1/FVC was 76 percent.  

A November 2004 VA clinic progress report noted that the 
Veteran felt that his lung capacity was down.  The clinician 
decided to add Singular and to wait to taper the Veteran off 
theophylline (Theolair) until he was stabilized.  The Veteran 
was also taking flunisolide.  

In a January 2005 statement, the Veteran reported having a 
series of bronchial asthma attacks in the fall of 2004 that 
required medical treatment at VA and private facilities.  The 
Veteran reported a history of prednisone treatment at VA, but 
that since the previous summer VA no longer administered 
prednisone.  The Veteran stated that he self-medicated in 
order to control his asthma and to avoid having to travel to 
an emergency room.  

A May 2005 VA pulmonology record noted the Veteran's report 
of his most recent asthma exacerbation being in November 
2004.  (The current claim for an increased rating was 
received by the RO on November 16, 2004.)  His PFT showed a 
FEV-1 of 71 percent and a FEV-1/FVC of 76 percent.  In a 
letter submitted in May 2005, the Veteran stated that he 
takes two doses of corticosteroids daily and that the recent 
PFT's show his condition has worsened.  However, the 
clinician's report stated that the Veteran had a severe 
coughing spell that could have caused the considerable 
decline in his FEV-1.  Otherwise, the Veteran denied any 
worsening of his asthma symptoms.  

During a July 2005 VA examination, the Veteran stated that 
his private physician prescribed him Valium and Tedral to 
take during asthma exacerbations and asthma attacks, 
respectively.  The Veteran was not currently taking 
prednisone pills and had not been for a couple of years, 
although he claimed to have a prescription for it.  He stated 
that he had taken prednisone orally before he was prescribed 
Advair Diskus.  He explained that he did not go to the 
hospital for the past two asthma attacks, because he knows 
how to treat himself, as he has had asthma for over 50 years, 
and his wife is a nurse.  He gets shortness of breath with 
moving around; allergies also trigger his asthma.  The 
Veteran reported using albuterol five to six times per week 
and using it two to three times a day during an attack, which 
he says occurs about once or twice a month.  His PFT showed 
his FEV-1 was 106 percent and his FEV-1/FVC was 81 percent.  
The Veteran also reported occasional use of an EpiPen.  

During an August 2005 VA clinic visit, the Veteran complained 
of two milder attacks in the spring.  His lungs were clear to 
auscultation; he had good air entry and no wheezes.  

A November 2005 VA pulmonology report found the Veteran's 
chronic asthma to be much worse during the summer months, 
which may be related to his work on a farm.  The physician 
advised that the Veteran should either avoid working on the 
farm or take an increased dose of Advair during the summer 
months.  The Veteran reported his asthma was well controlled 
the past month, and he had not had nightly symptoms or 
exacerbations.  The PFT showed his FEV-1 was 86 percent and 
his FEV-1/FVC was 78 percent.  He had coughing on deep 
expiration.  The physician created a plan for future asthma 
attacks that involved prescribing the Veteran a tapering dose 
of prednisone when he has an attack.  

A May 2006 VA pulmonology record noted that the Veteran 
reported no recent exacerbations, but he did have occasional 
wheezing, although not during the examination.  His Advair 
dose was increased for the spring and summer, and the 
physician prescribed prednisone to be used in the case of an 
exacerbation.  In June 2006 the Veteran's breathing was good.  

In his June 2006 substantive appeal (VA Form 9), the Veteran 
alleges that the Advair Diskus he takes is a corticosteroid 
and as orally inhaled is delivered to the lungs and is then 
systemically absorbed.  The Veteran states that this is 
explained in the drug's "Prescribing Information" as found 
in the Veteran's "Exhibit D."  The Veteran believes he is 
entitled to a 100 percent rating, but he would be willing to 
settle for a 60 percent rating, as he does not feel totally 
disabled.  The Veteran reiterated this in December 2006 and 
September 2007 statements.  

A November 2006 letter from the Veteran's private treating 
physician stated that the Veteran takes Advair on a regular 
basis and that, upon his understanding of [medical] 
literature, it is clear that some of the inhaled steroids are 
absorbed in the bloodstream.  

A November 2006 VA pulmonology record noted that the 
Veteran's asthma was stable with no recent exacerbations.  He 
continued to take Advair and Singular with good results.  
However, the Veteran wanted to decrease the dose of his 
inhaled steroids; only Advair was decreased.  In May 2007 the 
Veteran continued to have good control of his asthma with his 
current medications.  

In July 2007, a VA pulmonologist found the Veteran had mild 
persistent asthma with well controlled symptoms.  The 
physician increased his Advair for the summer months.  The 
Veteran had wheezing and cough.  The Veteran expressed 
concern about inhaled steroids, and the physician requested a 
bone densitometry.  In November 2007 the Veteran's asthma was 
stable.  

In May 2008, a VA pulmonologist noted that the Veteran 
reported he had not had an asthma exacerbation in two years.  
His lungs were clear to auscultation.  His PFT showed his 
FEV-1 was 90 percent and his FEV-1/FVC was 76 percent, which 
is consistent with normal spirometry.  The physician 
prescribed a prednisone taper to be used in emergencies, in 
case of an acute exacerbation.  

An August 2008 VA treatment record noted that the Veteran had 
good control of his asthma over the summer.  The Veteran 
reported needing the higher dose of Advair and using his 
albuterol rescue inhaler three to four times per week.  

During the September 2008 VA respiratory examination, the 
Veteran reported that he had frequent exacerbations of 
asthma.  When questioned about the discrepancy between this 
statement and his May 2008 report of not having an 
exacerbation in two years, he stated that it was true that he 
had not had an exacerbation in two years.  The Veteran sees 
the VA pulmonologist once a year, and he sees his primary 
care physician in between.  He stated that he had not needed 
to see a physician or to be hospitalized for a flare-up.  
While the Veteran claimed he is on parenteral steroids, the 
examiner stated that Advair is an inhaled combination 
medication including a corticosteroid, but it is not a 
parenteral steroid.  Additionally, Singular and Claritin, 
which are tablets, and albuterol, which is an inhaler, are 
not steroids and are not given parenterally.  The Veteran 
stated that his last dose of oral steroid (prednisone) was in 
April or May 2008, but there is no record of an exacerbation 
of asthma or such treatment at this time.  The Veteran stated 
that he has a "stash" of prednisone that he takes once a 
year for exacerbations, but he does not see a physician.  His 
lungs were clear to auscultation without wheezing or rhonchi.  
The Veteran was not coughing or short of breath during the 
examination.  He refused to have a PFT, but he brought the 
results of the May 2008 PFT.  The Veteran was diagnosed as 
having asthma with no recent exacerbations.  

In June 2009 the Veteran submitted additional evidence to the 
Board and waived RO consideration.  He provided a definition 
of the word "parenteral," information on Symbicort, and a 
history of his PFT results.  The Veteran discussed this 
evidence in the June 2009 Board hearing, and he stated that 
VA had changed his Advair to Symbicort, which he claimed was 
also a parentaral corticosteroid.  The Veteran stated that 
the PFT results show that his lungs have gotten worse over 
the years.  

In May 2009 the Veteran's PFT was FEV-1 was 71 percent and 
his FEV-1/FVC was 76 percent.  

Analysis

In weighing the Veteran's testimony and statements, private 
and VA treatment records, and reports of VA examinations of 
record, the Board concludes that the preponderance of the 
evidence is against a rating in excess of 30 percent for his 
service-connected asthma.  38 C.F.R. §§ 4.96, 4.97, DC 6602.  

With respect to whether the Veteran's treatment for asthma 
includes at least three courses per year of systemic 
corticosteroids administered orally or parenterally, the 
Board noted at the outset that the Veteran's private 
physician reported in a November 2006 letter that upon his 
understanding of [medical] literature it is clear that some 
of the inhaled steroids in Advair are absorbed in the 
bloodstream.  The record indicates that the Veteran uses such 
inhaler treatment intermittently.  However, under the 
applicable rating criteria found in 38 C.F.R. § 4.97, 
Diagnostic Code 6602, at least three courses per year of 
systemic corticosteroids administered orally or parenterally 
warrants a 60 percent rating.  (Emphasis added.)  As 
explained below, the September 2008 VA examiner who reviewed 
the record and obtained a detailed medication n history noted 
that prednisone was the only oral corticosteroid that was 
prescribed for the Veteran and such medication was ordered 
prophylactically or for use only in emergencies.  The latter 
examiner's findings are not consistent with, and the other 
relevant medical evidence does not show at least 3 courses of 
prednisone over a one year period.  

The private physician's November 2006 statement is somewhat 
tentative as to whether the inhalant in question is a 
systemic drug and did not distinguish oral from inhaled 
medication.  To the extent that this statement supports a 
finding that the Veteran's inhaled medication at issue 
(Advair) is an oral systemic corticosteroid it is definitely 
outweighed by the subsequent VA medical opinion.  Unlike the 
latter VA clinician, there is no indication that the private 
clinician reviewed the relevant evidence in the claims file, 
to include the Veteran's medication history.  On the other 
hand, the September 2008 VA examiner reviewed the Veteran's 
claims file, obtained a detailed medical history, to include 
the history of prescribed medications, and considered the 
November 2006 medical opinion.  The September 2008 VA 
examiner, although acknowledging the Veteran's history of 
taking inhaled steroids, distinguished oral and inhalant 
steroids and, as noted above, found that prednisone was the 
only oral corticosteroid prescribed and added that there was 
no evidence of parenteral steroid use.    

Greater weight may be placed on one physician's opinion over 
another's depending on factors such as reasoning employed by 
the physicians, and whether or not and to what extent they 
review prior clinical records and other evidence.  Gabrielson 
v. Brown, 7 Vet. App. 36 (1994).  Here, in weighing the 
respective medical opinions, the September 2008 VA examiner's 
opinion reflects a full review of all of the relevant medical 
evidence of record, including the November 2006 letter 
written by the private physician, and there is indication 
that the VA clinician is more complete familiarity with the 
Veteran's medical history.  The VA opinion is also supported 
by detailed findings and rationale, and is couched in terms 
of greater certainty.   
As evidenced by the VA pulmonology records, the Veteran was 
only prescribed prednisone in the case of an emergency to 
treat an asthma attack; these prescriptions for prednisone 
were written in November 2005, May 2006, and May 2008.  The 
May 2008 treatment record and the September 2008 VA 
examination noted that the Veteran had not had an 
exacerbation in two years, which would indicate his last 
exacerbation was in 2006.  During the July 2005 VA 
examination, the Veteran reported that he had not taken 
prednisone in several years.  Although the Veteran reported 
during the September 2008 VA examination that he took 
prednisone in April or May 2008, the examiner pointed to the 
discrepancy in his medical records, when he stated he had not 
had an exacerbation in two years.  Even if the Veteran did 
take prednisone in April or May 2008, that would only be one 
course and in order to be entitled to a 60 percent rating, he 
would have needed to have taken it three times in one year.  
38 C.F.R. § 4.97.  The Veteran himself noted during the 
September 2008 VA examination that he had a "stash" of 
prednisone and took it once a year for exacerbations further 
indicates that he does not meet the requirement of having 
three courses of prednisone treatments per year.  

It is important to emphasize that prednisone was the only 
medication that the September 2008 VA examiner used in 
consideration of meeting the systemic oral corticosteroid 
requirement of DC 6602.  38 C.F.R. § 4.97, DC 6602.  The 
examiner stated that Advair is an inhaled combination 
medication including a corticosteroid, but it is not a 
parenteral steroid and the clinician added that the Veteran's 
last dose of an oral steroid was prednisone.  The examiner 
further observed that the Veteran's other medications, which 
include Singular, Claritin, and albuterol, are not steroids 
and are not given parenterally.  

In light of the foregoing, the Board finds that the opinion 
of the November 2006 private physician is of less probative 
value than the opinion by the September 2008 VA examiner with 
respect to whether the Veteran is entitled to a 60 or 100 
percent rating based upon the frequency of treatment with 
oral or parenteral systemic corticosteroids.  Upon 
consideration of all of the relevant medical evidence of 
record, the Board finds that the preponderance of the 
evidence is against a finding that the Veteran has received 
systemic treatment with corticosteroids (oral or parenteral) 
at least three times in a year.  38 C.F.R. § 4.97, DC 6602.  
The questions that remain are whether the Veteran meets the 
criteria for a 60 percent rating based upon the frequency of 
visits to a physician or medical facility for treatment of 
his asthma and the results of pulmonary function tests 
(PFTs).

The preponderance of the evidence is also against a finding 
that the Veteran required monthly care by a physician for 
asthma exacerbations.  38 C.F.R. § 4.97, DC 6602.  During the 
September 2008 VA examination, the Veteran reported seeing 
his VA pulmonologist once per year and his primary care 
physician in between.  In fact the record reflects that he 
saw a pulmonologist twice a year, but that still does not 
meet the statutory requirement.  Since the September 2008 VA 
examination, the Veteran has continued to receive medical 
care from the above referenced providers.  However, the 
records in the claims file do not confirm monthly visits with 
these physicians or any other clinician or medical facility.  

In reviewing the results of the numerous PFTs that have been 
performed since 2004, the Board notes that the Veteran did 
not have a FEV-1 as low as or proximate to 40 to 55 percent 
of predicted value or a FEV-1/FVC of 40 to 55 percent to fall 
under the 60 percent rating criteria of DC 6602.  38 C.F.R. 
§ 4.97.  His FEV-1 scores were between 71 and 106 percent, 
and his FEV-1/FVC scores were between 76 and 81 percent from 
2004 to 2009.  Accordingly, these numbers do not even fall 
within the 30 percent rating criteria of DC 6602, which is 
between 56 and 70 percent, let alone meting the criteria for 
a 60 percent rating.  

Based on the foregoing, the Veteran's service-connected 
asthma does not meet the criteria for the next highest 
evaluation of 60 percent.  The Board does not find evidence 
that the evaluation for the Veteran's asthma should be any 
different for any separate period based on the facts found 
during the appeal period.

As required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 
(1991), the Board has considered the potential application of 
various provisions of Title 38 of the Code of Federal 
Regulations, whether or not the Veteran raised them, 
including § 3.321(b)(1), which governs extraschedular 
ratings.  The Board finds that the evidence of record does 
not present such "an exceptional or unusual disability 
picture as to render impractical the application of the 
regular rating schedule standards."  38 C.F.R. § 3.321(b)(1) 
(2007).  There has been no showing by the Veteran that his 
service-connected asthma has necessitated frequent 
hospitalizations; in fact he has specifically denied 
hospitalizations.  The Veteran's asthma is worse during the 
summer when he is farming.  The numerous PFTs revealed 
findings that do not even support a 30 percent rating.  The 
current rating for the Veteran's asthma takes into account 
some industrial impairment; the degree of disability shown is 
not beyond that contemplated by the rating schedule or 
consistent with marked interference with employment.  Thus, 
the criteria for submission for consideration of an 
extraschedular rating for bronchial asthma 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).

The Board has considered the doctrine of reasonable doubt.  
38 U.S.C.A. § 5107(b).  However, the preponderance of the 
evidence is against a rating in excess of 30 percent for 
asthma.  Under such circumstance, the benefit of the doubt 
doctrine does not apply to the instant case.  Id.; see also 
Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001) 
(holding that "the benefit of the doubt rule is inapplicable 
when the preponderance of the evidence is found to be against 
the claimant");Gilbert v. Derwinski, 1 Vet. App. 49, 54 
(1990).


ORDER

Entitlement to an increased evaluation for asthma is denied.  



____________________________________________
R. F. WILLIAMS	
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs