Citation Nr: 1120871 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 08-10 080A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for reactive airway disease (asthma), for the period from October 4, 2005 to February 12, 2006. 2. Entitlement to a rating in excess of 30 percent for reactive airway disease (asthma), for the period since February 13, 2006. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In an August 2010 submission, the Veteran indicated that he desired a Board hearing be held in Washington, D.C. A March 2011 letter from the Board notified him that the requested hearing had been scheduled for a date in April 2011. The Veteran failed to appear for his scheduled hearing. As the claims file does not reflect that the letter was returned as undeliverable, and the Veteran has not requested that the hearing be rescheduled, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702 (2010). Subsequent to the final adjudication in this appeal, the August 2010 Supplemental Statement of the Case, the Veteran twice submitted materials to the Board, including copies of recent medical records, congressional correspondence, and home foreclosure documents. The Veteran's representative has provided a written waiver of initial RO consideration of this new evidence in an April 2011 brief and in a May 2011 memorandum. The Board accepts this additional evidence for inclusion in the record. See 38 C.F.R. § 20.800 (2010). In the May 2006 rating decision on appeal, the RO denied a rating in excess of 10 percent for the Veteran's asthma from the date of his claim until February 12, 2006, and granted an increase to 30 percent from February 13, 2006 (the date of the earliest medical evidence showing a higher rating was warranted). Therefore, the issue has been characterized as it appears on the title page. As these ratings do not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn his claim for an increase, an increase for these two ratings for the Veteran's asthma remain pending. See AB v. Brown, 6 Vet. App. 35 (1993). The Board also notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held that a TDIU claim is part of an increased disability rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, during his VA examinations in April 2006 and June 2008, the Veteran asserted that he was no longer able to work in his former job because of his service-connected asthma disability now on appeal. VA examiners of this disability have noted the effects on the Veteran's occupational and daily activities resulting from his asthma. Correspondence from his private pulmonologist, Dr. J.D.D., dated in February 2007, suggested that the Veteran could not work again due to his asthma. In light of Rice, the Veteran's evidence that his TDIU is, at least in part, the result of his service-connected asthma disability, and the evidence that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA) and from his former employer, the Board finds that the Veteran's increased rating claim includes a claim for TDIU. This claim, therefore, has been added on the title page as an additional claim entitled to current appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. For the period from June 9, 2005 to May 10, 2007, the evidence of record shows that the Veteran was furnished intermittent courses of systemic corticosteroids and in March 2007 had a Forced Expiratory Volume in one second (FEV-1) of 45 percent of predicted value. 2. For the period since May 11, 2007, pulmonary function test findings fail to reflect a FEV-1, or a Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC), of 40 to 55 percent predicted; or otherwise illustrate that the Veteran requires monthly visits to a physician for exacerbations; or uses intermittent courses of systemic corticosteroids. CONCLUSIONS OF LAW 1. The criteria for a rating of 60 percent, but no higher, for reactive airway disease (asthma), for the period from June 9, 2005 to May 10, 2007, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.97, Diagnostic Code 6602 (2010). 2. The criteria for a rating in excess of 30 percent for reactive airway disease (asthma), for the period since May 11, 2007, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.97, Diagnostic Code 6602 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been fulfilled by information provided to the Veteran in letters from the RO dated in December 2005 and June 2007. These letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim, and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009)). The Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to disability ratings and effective dates was provided in the June 2007 correspondence. With regard to the additional notice requirements for increased rating claims, it is acknowledged that the VCAA letters sent to the Veteran do not appear to fully satisfy the specifics of the original Court decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which required the VA to notify a veteran of alternative diagnostic codes or potential "daily life" evidence of how the disability affected the Veteran's employment. However, these letters did advise the Veteran of the criteria necessary to substantiate a higher rating for his service-connected disability. In any event, the Federal Circuit Court recently vacated the Court's previous decision in Vasquez-Flores, concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Further, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issue on appeal have been met. The duty to assist also has been fulfilled as VA and private medical records, as well as records from the Social Security Administration (SSA) have been requested or obtained, and the Veteran has been provided VA examinations. The Board finds that the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim would not cause any prejudice to the appellant. Increased Ratings - Laws and Regulations Disability evaluations are determined by application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). 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, therefore, is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2010). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses are prohibited. 38 C.F.R. § 4.14 (2010). As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). As a layperson the Veteran is only competent to report observable symptoms--not clinical findings which are applied to VA's Schedule for Rating Disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998). When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2010). 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; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2010). Asthma The Veteran seeks a higher disability rating for his service-connected reactive airway disease (asthma). The RO granted service connection for this disability in a February 1993 rating decision. At that time, a 0 percent, or noncompensable, disability rating was assigned, effective October 22, 1992. In April 1998, the disability rating was increased from noncompensable to 10 percent, effective October 22, 1992. On October 4, 2005, the Veteran filed this claim for increase and essentially contends that his asthma is more severe than contemplated by a 10 percent disability rating. In an April 2006 rating decision, the RO continued the then current 10 percent disability rating. However, in the May 2006 rating decision on appeal, the Veteran's disability rating was increased from 10 percent to 30 percent, effective February 13, 2006, the date a VA medication list shows the Veteran was prescribed Flunisolide oral inhalant. The Veteran has not withdrawn his claim for an increased rating for asthma and is presumed to be seeking the maximum benefits allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran's service-connected reactive airway disease is currently rated under Diagnostic Code 6602, for rating bronchial asthma. Under 38 C.F.R. § 4.97, Diagnostic Code 6602, a 10 percent rating is warranted for bronchial asthma with a Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent predicted; or, FEV-1/ Forced Vital Capacity (FVC) of 71 to 80 percent; or, intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for 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. A 60 percent rating is warranted for 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) course of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted for 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 parenteral) high dose corticosteroids or immuno-suppressive medications. Post-bronchodilator findings from the pulmonary function tests (PFTs) are the standard in pulmonary assessment. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilation as these results reflect the best possible functioning of an individual). VA amended the rating schedule concerning respiratory conditions, effective October 6, 2006. VA added provisions that clarify the use of pulmonary function tests (PFTs) in evaluating respiratory conditions. A new paragraph (d) to 38 C.F.R. § 4.96, titled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845" was added. Because the amendment does not pertain to Diagnostic Code 6602, these changes have no bearing on the present case. The Veteran's asthma is properly addressed under 38 C.F.R. § 4.97, Diagnostic Code 6602 as this code provides specifically for the evaluation thereof. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Factual Background A private list of the Veteran's pharmacy orders associated with the claims file reveals that he was prescribed and provided prednisone, a corticosteroid drug, in June 2005 for 15 days; in August 2005 for 10 days; three times in October 2005 for 9, 4, and 18 days; in November 2005 for 14 days; in December 2005 for 8 days; in January 2006 for 4 days; twice in March 2006 for 10 and 1 days; in June 2006 for 9 days; in July 2006 for 6 days; twice in August 2006 for 9 and 7 days; in October 2006 for 9 days; in November 2006 for 12 days; and twice in January 2007 for 4 and 6 days. An August 2005 private medical record revealed that the Veteran was seen for an exacerbation of his asthma. Prednisone was ordered for eight days. A September 2005 private medical record noted that the Veteran had gone to the hospital the previous night because his coughing was so bad that he was vomiting and had headaches. He was given "a shot of steroids." A September 2005 private pulmonary function test (attached to the report of the April 2006 VA examination) showed a FEV-1 of 76 percent of predicted after bronchodilator therapy. An October 2005 private pulmonary function test (also attached to the April 2006 VA examination) showed a FEV-1 of 73 percent of predicted after bronchodilator therapy. An October 2005 private medical record noted that the Veteran had asthma with recent sinusitis and a cough. It also was noted that he was on antibiotics and was given a nebulizer which he only used twice at home, as he did not think it helped him. The examining physician's assistant prescribed Prednisone for 9 days. Correspondence of Dr. J.D.D. dated in October 2005 asserted that the Veteran had "quite severe asthma." A private medical record of that date revealed that the Veteran had required fairly intensive therapy for most of the time since he contracted asthma, including frequent courses of steroids to improve his symptoms. Persistent symptoms had required multiple courses of steroids for the past few weeks, but he continued to have severe coughing, wheezing, and shortness of breath in spite of the steroid therapy. A spirometric examination showed FEV-1 was 60 percent of predicted and FEV-1/FVC was 62 percent of predicted. Diagnosis included severe asthma with exacerbation and Prednisone was to be tapered over 15 days. A November 2005 private medical record from Dr. J.D.D. noted that the Veteran had improved on oral steroids, but had now worsened again. He was prescribed Prednisone for 10 days. A December 2005 record noted a Prednisone taper and that the Veteran was using Advair 500/50, one puff twice a day, Singulair at night, and Albuterol about three times per day. A December 2005 private pulmonary function test (also attached to the April 2006 VA examination) did not use post bronchodilator studies. FEV-1 was 62 percent of predicted. A February 2006 VA medical record noted that the Veteran had had sinus surgery in December 2005. At this outpatient visit, no cough, wheezing, dyspnea or hemoptysis were noted. A VA list of prescriptions for the Veteran dated on February 13, 2006 showed that the Veteran was to take an oral inhalant (Flunisolide) twice a day. Private medical records dated in March 2006 from the Capital Regional Medical Center revealed that the Veteran was hospitalized for several days for bilateral lower lobe pneumonia. On discharge, Dr. J.D.D. did not recommend that the Veteran take AeroBid because he had "very severe asthma with marginal control at present." At a March 2006 visit with his private physician, Dr. L.B.R. noted that the Veteran was symptomatically improved after his recent hospitalization for pneumonia and that he was still on steroids as well as multiple inhalers. It also was noted that Flovent had been added to his medication regimen in addition to the use of Advair. The Veteran underwent a VA examination in April 2006. The VA examiner noted that the Veteran had been hospitalized the month before for pneumonia, had been treated with antibiotics and then discharged on antibiotics and steroids and had significantly improved. He denied symptoms consistent with active pneumonia and denied other hospitalizations within the past 12 months for asthma. The Veteran complained of an occasional productive cough without hemoptysis. He reported dyspnea on exertion with any physical activity. He weighed 236 pounds. He also reported asthma flares with physical activity and exercise, cold weather exposure, animal dander exposure, pollen exposure, and with exposure to certain fumes. His baseline functional status between attacks was reported to be abnormal with continued dyspnea on exertion. The Veteran had no evidence of dyspnea on exertion during this examination. He was currently prescribed multiple medications for his asthma, including: Singulair, Advil, Albuterol multidose inhaler (to be used when needed), and Flovent (two puffs twice a day). The Veteran said that his prescribed medications were moderately effective and controlled his symptoms. He also reported several courses of oral Prednisone therapy for approximately four to six months in 2005, but denied steroid therapy subsequent to his most recent hospitalization in March. On physical examination, the Veteran appeared well-nourished and well-developed and in no acute distress. A respiratory rate of 16 was noted and the lungs were clear to auscultation anteriorly and posteriorly without cor pulmonale, right ventricular hypertrophy or pulmonary hypertension. The Veteran presented a private pulmonary function test dated in November 2005 which revealed: FVC improved to 81 percent of predicted after bronchodilator therapy and FEV-1 improved to 74 percent of predicted after bronchodilator therapy. The Veteran cancelled the pulmonary function test scheduled in March 2006 for this VA examination and instead presented copies of private pulmonary function tests. The VA examiner also noted that lung volume testing and DLCO determination was not indicated for this Veteran with his history of asthma because asthma is an obstructive ventilator dysfunction evidenced by airway responsiveness. She also noted that spirometry data was consistent with asthma and supported the effectiveness of bronchodilator therapy. A July 2006 private medical record from Dr. L.B.R. noted that the Veteran had severe asthma, had several bouts of pneumonia, and was recently treated with steroids until about two weeks ago. August 2006 private medical records from different doctors noted that the Veteran was treated for an asthma exacerbation due to a bacterial bronchitis. Prednisone was prescribed for nine days by the first doctor and for one week by the second. An October 2006 private medical record from Dr. L.B.R. noted that the Veteran had a history of recurrent respiratory infections and had been treated over the summer for pneumonia. The Veteran presently had a fever and was coughing up brown sputum. Diffuse expiratory wheezes were noted from the lungs. The physician assessed sinobronchitis versus recurrent pneumonia and, in part, prescribed Prednisone for 9 days. A November 2006 private medical record from the Tallahassee Pulmonary Clinic noted that the Veteran had a recent exacerbation due to a viral upper respiratory infection. The physician noted that steroid therapy would worsen the Veteran's diabetes control, but prescribed Prednisone for 12 days. A November 2006 private medical record of Dr. J.D.D. noted that the Veteran's severe asthma was clinically stable, that he had been seen by another physician earlier in the month and been treated with Prednisone, that he had done better and denied symptoms at present, and that he had apparently lost his job because of persistent absence. A January 2007 private medical record from Dr. J.D.D. noted exacerbation of severe asthma, that the Veteran had been seen in the emergency room two nights before with increased shortness of breath, and that he had received an injection of Prednisone and was to take Prednisone in tapered amounts over the next 10 days. Correspondence dated in February 2007 from Dr. L.B.R. noted that the Veteran had severe asthma and had had recurrent pneumonia and respiratory infections over the last few years. For his asthma and pneumonia, the Veteran required multiple rounds of steroids, antibiotics, as well as his maintenance asthma therapy, including nebulizer treatments. Correspondence dated in February 2007 from Dr. J.D.D., the Veteran's private pulmonologist, noted that he had been treating the Veteran since October 2005 and that the Veteran had severe refractory asthma. The physician said that the Veteran had multiple exacerbations requiring chronic therapy with steroids, hospitalizations, and frequent physician visits. He thought that the Veteran could not sustain employment because of frequent exacerbations of his steroid-dependent and severe asthma. Dr. J.D.D. thought this a chronic condition unlikely to remit or resolve. A May 2007 private medical record noted that a pulmonary function test in March 2007 revealed a FEV-1 of 45 percent predicted. However, a spirometry dated May 11, 2007 showed a FEV-1 of 61 percent of predicted. A spirometric examination dated in November 2007 showed a FEV-1 of 75 percent of predicted and a FEV-1/FVC of 65 percent. Dr. J.D.D. noted that the Veteran's asthma was much better than in a long time. Lay statements from the Veteran's father and brother dated in March 2008 note the Veteran's incapacitating medical problems, including asthma, and their effect on the Veteran's deteriorating quality of life and his unemployment. The Veteran underwent a VA examination in June 2008. He told the examiner that his only recent hospitalization for a respiratory complaint was for pneumonia in March 2006 and his last visit to an emergency room due to asthma exacerbation was in January 2007. Medical follow-ups in March and May 2007 found the Veteran stable and significantly better. He experienced acute asthma attacks, and was seen for clinical visits for exacerbations, several times per year. A history of wheezing and dyspnea was noted. His basic medical treatment was described as intermittent use of an inhaled bronchodilator and daily use of an inhaled anti-inflammatory. His treatment response was listed as fair with improvement, though some symptoms remained. The Veteran took no oral or parenteral steroids and no other immune-suppressives. The Veteran also reported that he suffered at least three asthma attacks per month, but was generally able to control them with the use of nebulizers and inhalers. On examination, there were no conditions that could be associated with pulmonary restrictive disease and the examiner noted a mild impairment between asthma attacks. There was no evidence of cor pulmonale or pulmonary hypertension. Results from a May 2008 VA pulmonary function test included: FEV-1 was 72 percent predicted and FEV-1/FVC was 98 percent after bronchodilator therapy. A November 2008 VA medical record noted that the Veteran used Albuteriol or Combivent depending on his status and symptoms. The Veteran was aware that he was not to use them concurrently or with Advair. He took Advair and Spiriva when he was stable. An April 2009 private medical record noted that the Veteran was seen for an asthma exacerbation secondary to acute bronchitis. Dr. J.D.D. prescribed Prednisone tapering to zero over 8 days. Simple spirometry showed FEV-1 was at 70 percent. The Veteran underwent a VA examination in October 2009. The Veteran complained that his symptoms of reactive airway disease had worsened during the previous year. He said that exposure to dogs, dust, pollen, perfume, car exhaust, and cleaning odors could trigger an asthma attack. It was noted that he took the following medications: Montelukast (a tablet for breathing), Albuterol (an oral inhaler for breathing), a nebulizer treatment with another form of Albuterol, a nebulizer treatment with Ipratropium bromide, and Fluticas 500/Salmeterol (an oral inhaler for breathing). A VA pulmonary function test of September 2009 showed FEV-1 was at 81 percent of predicted and FEV-1/FVC was at 97 percent of predicted. Impression was mild restrictive and obstructive pulmonary defect with good response to bronchodilator and normal diffusing capacity. Diagnosis was mild reactive airway disease (asthma). There was no evidence of cor pulmonale or pulmonary hypertension. Analysis Based on the evidence of record, the Board finds that a disability rating of 60 percent, but no higher, is warranted for the Veteran's service-connected reactive airway disease (asthma) for the period from June 9, 2005 (the date of the earliest medical evidence showing a higher rating was warranted) to May 10, 2007. A private pharmacy list associated with the claims file revealed that the Veteran was prescribed Prednisone on an intermittent, but not daily basis, from June 9, 2005 until January 4, 2007. In addition, a May 11, 2007 private medical record showed a measurement in March 2007 of FEV-1 of 45 percent predicted though a May 11, 2007 spirometric examination showed FEV-1 of 75 percent predicted and a FEV-1/FVC of 65 percent. A 60 percent rating for asthma under Diagnostic Code 6602 can be granted with evidence of intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids and for FEV-1 or FEV-1/FVC of 40 to 55 percent. Generally, the effective date of an award of compensation based on a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application thereof, in this case October 4, 2005. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, an exception to the general rule governing claims for increased compensation is contained in 38 U.S.C.A. § 5110(b)(2). If the evidence demonstrates that the increase in disability occurred prior to the date of receipt of claim, VA may assign the earliest date as of which it is ascertainable that the increase occurred as long as the claim for the increased disability rating is received within a year of the date that the increase occurred. See 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Here, the evidence demonstrates that the criteria for a 60 percent disability rating was met prior to the date of receipt of the claim on October 4, 2005, because the private pharmacy list shows that the Veteran was prescribed Prednisone on June 9, 2005, within one year of the receipt of the claim for increase. Therefore, this staged 60 percent disability rating is effective as of June 9, 2005, even though such date is before the Veteran filed his current claim. The evidence in the claims file also indicates that the Veteran underwent a private pulmonary function test in March 2007 with a FEV-1 of 45 percent predicted recorded. A FEV-1 of 45 predicted also meets the regulatory criteria for a 60 percent rating. However, a May 11, 2007 record revealed spirometry results showing that FEV-1 improved to 61 percent of predicted, which only meets the regulatory criteria for a 30 percent disability rating for asthma. Therefore, the Veteran is entitled to a 60 percent disability rating for asthma from June 9, 2005 to May 10, 2007. The Board notes that the evidence of record does not show that the Veteran is entitled to the next higher 100 percent rating during this time period. Pulmonary function test results did not yield results that met or approximate the criteria for a 100 percent rating pursuant to Diagnostic Code 6602. Pulmonary function test results did not show FEV-1 less than 40 percent predicted after use of a bronchodilator, or FEV-1/FVC less than 40 percent. The evidence during this time period also did not show more than one attack per week with episodes of respiratory failure, or daily use of systemic corticosteroids or immuno-suppressive medications. Accordingly, a disability rating of 60 percent for asthma, but no higher, for the period from June 9, 2005 to February 1, 2007, is granted in this case. After careful review of the evidence of record, the Board also finds that under Diagnostic Code 6602 the Veteran is not entitled to a rating in excess of 30 percent for the period since May 11, 2007. There is no clinical evidence, whether pre-or post-bronchodilator testing, to show FEV-1 of 40 to 55 percent of predicted value; FEV-1/FVC of 40 to 55 percent; 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 to warrant a 60 percent rating. In this regard, the evidence shows that while the Veteran requires the frequent use of inhalation medication his pulmonary function tests have not met the criteria listed in Diagnostic Code 6602 for a higher rating subsequent to May 11, 2007. While an April 2009 private medical record showed another prescription for Prednisone, use was only for 8 days and there is no other evidence showing at least three courses of systemic corticosteroid treatment in a 12-month period. Moreover, the record does not reflect that during this time period the Veteran has had at least monthly visits to a physician for required care of exacerbations. Accordingly, a rating in excess of 30 percent is not warranted for the period since May 11, 2007. The Board acknowledges the Veteran's assertion that his asthma is more severe than the two ratings considered herein for the appropriate time periods. The Veteran, as a lay person, is competent to provide such evidence of how his difficulty breathing affects his everyday life. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994) (finding lay testimony competent when it concerns features or symptoms of injury or illness). The Board has found the Veteran credible in explaining past steroid medication and treatment for exacerbations, which are factors which are enumerated in the rating criteria to rate this disability, and the Board has granted a higher rating for one period of this appeal. As discussed above, the claimed symptoms are encompassed by the staged 60 percent rating and the continuation of his 30 percent rating for the remainder of the appeal period. The evidence does not otherwise show that the Veteran is entitled to higher ratings for his asthma. In sum, the Board finds that a 60 percent disability rating, but no higher, for the period from June 9, 2005 to May 10, 2007, and the 30 percent rating for the period since May 10, 2007, is appropriate in this case. A further staged rating under Hart is not warranted, as there appears to be no other identifiable period on appeal during which the Veteran's asthma manifested symptoms meriting a disability rating in excess of 30 percent. As the preponderance of the evidence is against any higher rating for this claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The Board also should consider whether an extraschedular rating is available under 38 C.F.R. § 3.321(b)(1), see Thun v. Peake, 22 Vet. App. 111 (2008), for this higher rating claim. However, as the issue of entitlement to a TDIU necessarily encompasses the same matter, and the issue of a TDIU is being remanded for further development, the Board need not now decide the Veteran's entitlement to any extraschedular consideration. ORDER Entitlement to a rating of 60 percent, but no higher, for reactive airway disease (asthma), for the period from June 9, 2005 to May 10, 2007, is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 30 percent for reactive airway disease (asthma), for the period since May 11, 2007, is denied. REMAND Unfortunately, a remand is required as to the issue of entitlement to a TDIU. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2010). The Court recently held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice, 22 Vet. App. at 453. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. The Board's review of the claims file reveals that the RO previously denied the Veteran's claim for a TDIU in an October 2009 rating decision. The Board notes that the Veteran then submitted documents in July 2010 and August 2010 that can reasonably be construed as a timely Notice of Disagreement with the denial of TDIU. See 38 C.F.R. §§ 20.200 and 20.201 (2010) (noting a NOD begins an appeal of an issue and that a NOD must be in terms reasonably construed as disagreeing with an adjudicative determination by an agency of original jurisdiction and express a desire for appellate review). No Statement of the Case (SOC) is found in the claims file responding to the Veteran's effort to appeal his claim to a TDIU. Therefore, the Board must remand this issue for the issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The RO/AMC shall re-examine the Veteran's claim of entitlement to a TDIU. If no additional development is required, the RO/AMC shall prepare a Statement of the Case in accordance with 38 C.F.R. § 19.29, unless this matter is resolved by granting the benefit sought, or by the Veteran's withdrawal of the Notice of Disagreement. If, and only if, the Veteran files a timely VA Form 9, Substantive Appeal should this issue be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs