Citation Nr: 1134465 Decision Date: 09/15/11 Archive Date: 09/23/11 DOCKET NO. 07-16 507 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial rating higher than 30 percent for asthma with reactive airway disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had active service from June 1977 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 RO rating decision that, in pertinent part, granted service connection and a noncompensable rating for asthma with reactive airway disease, effective December 1, 2004. A December 2008 RO decision increased the rating for the Veteran's service-connected asthma with reactive airway disease to 30 percent, effective December 1, 2004. Since that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The Veteran was last afforded a respiratory examination for VA purposes in July 2005. As to an assessment, the examiner indicated that the Veteran had a permanent form of asthma, combined with seasonal rhinitis and mild conjunctivitis. The examiner indicated that the Veteran's asthma required near permanent treatment with inhaled Albuterol and Fluticasone in moderate doses. It was noted that the apart from cats, there were no apparent definite allergens involved. The examiner reported that the Veteran had a bronchial hyper-reactivity to environmental changes in temperature. The examiner also stated that the estimation of the Veteran's ventilatory resistance was normal and that forced spirometry and maximum voluntary ventilation (maximum breathing capacity) were also within normal limits. It was noted that there was a 12 percent increase after bronchodilation. The actual June 2005 pulmonary function testing report indicated that FEV-1 was 86 percent predicted and that FEV-1/FVC was 94 percent. The Board notes that the Veteran has received treatment for his service-connected asthma with reactive airway disease subsequent to the July 2005 respiratory examination for VA purposes. For example, a May 2007 statement from Commander C. Quarles., apparently the Veteran's attending physician, at the U.S. Naval Hospital Rota in Spain, noted that the Veteran was currently prescribed ADVAIR (Fluticasone and Salmeterol) and Albuterol for control of his asthma. Dr. Quarles reported that during the Veteran's treatment at that facility from 1999 to the present, he had also been prescribed various asthma medications, including inhaled corticosteroids such as Flovent and Azmacort, to combat his asthma. It was noted that there were no plans to stop or change the Veteran's present asthma medications at that time. Additionally, in his April 2007 substantive appeal, the Veteran reported that he used inhaled corticosteroid medications on a daily basis to control his asthma. He also indicated that his acute asthma attacks had been caused by extreme changes in temperature over a short period of time, exercise in warm or cold weather, exposure to cat dander, and, at other times, for no know reason. He further stated that he felt that the FEV-1 values at the time of the July 2005 respiratory examination for VA purposes were suspect as he was fully medicated at the time of the pulmonary function tests. Further, in a December 2010 statement, the Veteran indicated that the prescription strength for his asthma medication had been doubled over the past year due to exacerbations in his condition. The Board observes that the Veteran has not been afforded a VA respiratory examination in over six years. Additionally, the record clearly raises a question as to the current severity of his service-connected asthma with reactive airway disease. Therefore, the Board finds that a current examination is necessary. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Prior to the examination, any outstanding records of pertinent treatment should be obtained and added to the record. Accordingly, the case is REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for respiratory problems since October 2008. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Specifically, relevant treatment records from the U.S. Naval Hospital Rota in Spain since October 2008 should be obtained. 2. Schedule the Veteran for a VA respiratory examination to determine the severity of disability due to his service-connected asthma with reactive airway disease. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All signs and symptoms necessary for rating the Veteran's service-connected asthma with reactive airway disease should be reported in detail (including all information for rating this disability under Diagnostic Code 6602). All necessary tests and studies are to be performed, including pulmonary function tests. It is essential that the pulmonary function study contain the full range of results necessary to rate the disability under the diagnostic criteria (FEV-1, FEV- 1/FVC). 3. Thereafter, review the Veteran's claim for entitlement to an initial rating higher than 30 percent for asthma with reactive airway disease. If the claim is denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond, before the case is returned to the Board. The purposes of this remand are to ensure notice is complete, and to assist the appellant with the development of his claim. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). _________________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).