Citation Nr: 0938025 Decision Date: 10/06/09 Archive Date: 10/14/09 DOCKET NO. 07-27 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a disability rating in excess of 30 percent for bronchial asthma. ATTORNEY FOR THE BOARD N. L. Northcutt, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. By way of background, the Veteran's claim was remanded by the Board for further evidentiary development in September 2008. After completing the requested development, the AMC readjudicated the claim, as reflected by a rating decision and supplemental statement of the case issued in June 2009. The claim has now been returned to the Board for further review. FINDINGS OF FACT 1. Pulmonary function testing fails to show an FEV-1 that is between 40 and 55 percent of the predicted outcome; or an FEV- 1/FVC that is between 40 and 55 percent of the predicted outcome. 2. The Veteran has not been required to make monthly visits to a physician to treat exacerbations of his asthma. 3. The evidence fails to show intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids have been required to treat the Veteran's bronchial asthma. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for bronchial asthma have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6602 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's notice requirements were satisfied by correspondence dated in August 2006 and December 2008. Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The Veteran was also notified of the information regarding the assignment of disability ratings and effective dates pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was sent correspondence by VA in July 2005 which provided him with adequate notice that he had to demonstrate that his service-connected disability had worsened in order to be eligible for an increased rating. Subsequent to this letter, the Veteran's claim was readjudicated by a June 2009 Supplemental Statement of the Case (SSOC). The Veteran proceeded to discuss his asthma symptomatology. It would appear that he had shown that he understands what is needed to substantiate his claim. Thus, he had been provided with adequate notice. See Vazquez-Flores v. Shinseki, ----F.3d--- -, 2009 WL 2835434 (C.A. Fed) (which concluded that the notice required by statute need not be Veteran-specific and that the VA's statutory scheme does not require that there be evidence of the impact made by the disability on a Veteran's daily life). The Board also finds that all relevant facts have been properly developed and that all available evidence necessary for equitable resolution of the issues on appeal has been obtained. All available records identified by the Veteran as relevant have been obtained, including his VA treatment records. The Veteran was afforded two VA respiratory examinations during the pendency of the instant claim. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Increased Rating The Veteran contends that the current severity of his bronchial asthma entitles him to an increased disability rating. Disability ratings are determined by applying a schedule of ratings that 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 the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evidence of record reflects an assignment of a 30 percent disability rating pursuant to Diagnostic Code 6602 for the entire rating period on appeal. Under this rating code, a 30 percent rating is assigned when Forced Expiratory Volume in one second (FEV-1) is between 56 and 70 percent of what was predicted; when the ratio of FEV-1 to Forced Vital Capacity (FEV-1/FVC) is between 56 and 70 percent; when daily use of inhalational or oral bronchodilator therapy is required; or when inhalational anti-inflammatory medication is required. 38 C.F.R. § 4.97 Diagnostic Code 6602 (2008). A 60 percent rating is assigned when the FEV-1 is between 40 and 55 percent of what was predicted; where FEV-1/FVC is between 40 and 55 percent of what was predicted; where a veteran must visit a physician at least monthly for required care of exacerbations; or where intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids are required. Id. Furthermore, evaluations based on pulmonary function tests (PFT's) should use post-bronchodilator results, unless the post-bronchodilator results are poorer than the pre- bronchodilator results. 38 C.F.R. § 4.96(d)(5) (2008). The relevant evidence of record includes a September 2005 VA treatment record, which reflects that the Veteran had been prescribed an Albuterol inhaler (a form of oral bronchodilator), which he was instructed to use twice daily. A September 2005 VA treatment record reflects that the Veteran reported wheezing every night, but that he was not using medications to treat his wheezing. A December 2006 VA treatment record reflects instructions that the Veteran use his Albuterol inhaler four times per day. However, at the time of his treatment, the Veteran reported frequent episodes of asthma at night, but inhaler use as needed, not daily. The Veteran underwent a VA respiratory examination in October 2006, during which the Veteran reported using his Albuterol inhaler almost daily. However, he reported no hospital or emergent care treatment for his asthma in the past year. The examiner noted that the Veteran had been prescribed an Albuterol inhaler, which he was instructed to take every six hours. Although the examination report does not include the numeric results of the Veteran's PFT's performed in conjunction with the examination, the examiner's interpretation of these results is included, which noted an impression of mild restrictive ventilator impairment with decreased airway resistance. An August 2007 VA treatment record reflects that the Veteran sought treatment for his exacerbated bronchial asthma, reporting fatigue and a cough with whitish phlegm. An examination of the Veteran's lungs revealed bilateral breath sounds with expiratory wheezing, and the Veteran was prescribed both Montelukast (the generic form of Singulair, a prescription treatment for asthma) and Prednisone (a corticosteroid drug), as well as an Albuterol inhaler and Albuterol for use with a nebulizer. The Veteran underwent another VA respiratory examination in November 2008, during which the Veteran reported that his last asthma attack was in August 2007, for which he was prescribed Singulair and a seven-day course of Prednisone. The Veteran also reported that he had had no more asthma attacks since August 2007, nor any need of Prednisone. The examiner noted that the Veteran used an inhaled bronchodilator daily for treatment of his asthma, as well as Albuterol respiratory therapies by a power nebulizer two to three times weekly. The examiner further noted that the Veteran did not have a history of hospitalization or surgery to treat his asthma and that he experienced acute asthma attacks or clinical visits for exacerbations less than once a year. Although the examination report does not include the numeric results of the Veteran's PFT's performed in conjunction with the examination, the report reflects that the examiner interpreted these results to reveal a normal pulmonary function study with moderate air trapping and increased airway resistance. The examiner further noted that when compared to the PFT's conducted in October 2006 in conjunction with the Veteran's prior VA examination, there had been no significant change. Post-bronchodilator PFT's conducted in December 2008 were recorded as an FEV-1 of 96% of the predicted outcome and an FEV-1/FVC of 108% of the predicted outcome. A January 2009 VA opinion (noted to be an addendum to the October 2008 VA examination) interpreted these numeric results as an essentially normal pulmonary function study, noting moderate air trapping and increased airway resistance. The examiner further stated that when comparing these results with the November 2008 PFT's, there had been no significant interval change. The Veteran's post-bronchodilator results conducted in December 2008 far exceed the criteria for a 60 percent disability rating, which require that the results be 40 to 55 percent of the predicted value. While the numeric PFT results from the Veteran's October 2006 and November 2008 VA examinations are not of record, the examiners characterized the results as essentially normal, indicating only mild restrictive ventilator impairment with moderate air trapping. Moreover, the November and December 2008 VA examiners noted that there had been no significant change in the Veteran's PFT results. Accordingly, an increased disability rating based on the Veteran's PFT results is not warranted. See 38 C.F.R. § 4.97 Diagnostic Code 6602 (2008). Moreover, the evidence of record fails to show a basis for awarding a 60 percent disability rating on the any alternate criteria, as there is no evidence that the Veteran has required at least monthly treatment by a physician for an exacerbation of his asthma or at least three courses of systemic corticosteroids per year. Rather, the Veteran reports and the medical evidence reflects only one treatment for an exacerbation of his asthma in August 2007, at which time he was prescribed one seven-day course of systemic corticosteroids (Prednisone). See id. Accordingly, the Board finds that a basis for granting a schedular disability rating in excess of 30 percent for the Veteran's bronchial asthma has not been presented. Regarding an extra-schedular evaluation, the Board finds that there is no showing that the severity of the Veteran's bronchial asthma reflects so exceptional or so unusual a disability picture as to warrant referral for consideration of a higher rating on an extraschedular basis. The Veteran has not asserted nor does the evidence in the claims file reflect that the Veteran's asthma has caused him to miss work or otherwise interfered with his employment. Moreover, the Veteran's VA examination reports reflect that the Veteran has not been hospitalized nor had any surgeries related to his bronchial asthma, and the medical records associated with the Veteran's claims file also fail to reflect hospitalizations for asthma. Thus, the Board concludes that the Veteran's bronchial asthma has not required frequent periods of hospitalization, caused marked interference with employment, or otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence of these factors, the criteria for referral for consideration of an extraschedular rating are not met. Thus, the Board is not required to remand this claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Total disability rating due to individual unemployability (TDIU) The Court of Appeals for Veterans Claims (CAVC) has recently held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In the instant case, the holding of Rice is inapplicable since the evidence of record does not indicate that the Veteran has been rendered unemployable by his service-connected asthma; thus, there is no cogent evidence of unemployability and entitlement to increased compensation based on TDIU is not warranted. ORDER A disability rating in excess of 30 percent for bronchial asthma is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs