Citation Nr: 1334828	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  11-00 264	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to a disability rating in excess of 30 percent for asthma.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Joseph Aquilina, Associate Counsel	







INTRODUCTION

The Veteran had active service from July 1982 to June 2002.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO).

A review of the Veteran's online Virtual VA file indicates that there is no outstanding evidence relevant to this appeal.


FINDING OF FACT

The Veteran's asthma has been managed by an anti-inflammatory medication and inhalational bronchodilator therapy on a daily basis, but has not required monthly visits to a physician or at least 3 courses of systemic corticosteroids per year. The weight of pulmonary function test findings after medication show no worse than FEV-1 (Forced Expiratory Volume in one second) of 60 percent predicted, or FEV-1/FVC (Forced Expiratory Volume in one second to Forced Vital Capacity) 80 percent predicted.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 30 percent for bronchial asthma are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.97, Diagnostic Code (DC) 6602 (2013).





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REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012),  38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013).  The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). 

The notice required by the VCAA can be divided into three elements.  Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain.  Beverly v. Nicholson, 19 Vet. App. 394, 403   (2005) (outlining VCAA notice requirements).  Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120   (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

In the instant case, notice was provided to the Veteran in September 2009 prior to the initial adjudication of his claim in January 2010.  The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  

VA satisfied its duty to assist the Veteran in the development of his claim and to seek relevant records.  VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO associated the Veteran's service treatment records, VA treatment records, and private medical records with the claims file.  The Veteran has not identified any other outstanding records.

VA provided the Veteran with medical examinations in October 2009 to evaluate the severity of his disability.  As will be described in more detail below in determining the merits of the appeal, the October 2009 examination report is adequate as it describes that the examiner considered the relevant history and medical records related to the Veteran's disability, provided a sufficiently detailed description of the disability, and an analysis of the current state of the disability based on the necessary tests or studies.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate).  While the examination is approximately four years old, it remains adequate as the Veteran has not asserted that his asthma has worsened since October 2009; rather, he has consistently asserted that he should be awarded a higher rating based the evidence already of record.  The July 2012 Informal Hearing Presentation submitted by the Veteran's accredited representative emphasizes only this central contention. 

As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.

Procedural and Factual Background

The Veteran contends that his service-connected asthma disorder is more disabling than is reflected in the current 30 percent disability rating.  He contends that an increase is warranted because he is required to use a steroidal medication in the form of Advair and Ventolin FHA which require refill and/or usage at least three times a year.

The evaluation of service connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in light of appropriate rating criteria.  38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet App. 589 (1991).  In addition, the entire history of the Veteran's disability is also considered.  Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation 38 C.F.R. §§ 4.2, 4.41, the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994);  Powell v. West, 13 Vet. App. 31 (1999).  However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119 (1999).  The United States Court of Appeals for Veterans Claims (Court) has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  Consideration must be given to the ability of the Veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10.  After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

If there is a question as to which of the two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is assigned. 28 C.F.R. § 4.7.

The record shows that entitlement to service connection for a respiratory disability to include asthma was established in a July 2002 rating decision.  A 30 percent evaluation was assigned under the former rating code.  See 4.71a, DC 6602 (2002). His current claim for an increased evaluation was received in October 2009.
This diagnostic code rates the severity of pulmonary disorders based primarily on objective numerical results of pulmonary function testing (PFT).  Asthma is evaluated using the following tests: (1) Forced Expiratory Volume in one second (FEV-1) and (2) the ratio of FEV-1 to Forced Vital Capacity (FEV-1/FVC).  38 C.F.R. § 4.97.  A revised regulation clarifying evaluation of respiratory conditions, 38 C.F.R. § 4.96(d), became effective October 6, 2006.  See 38 C.F.R. § 4.96(d).  The revision provides that when applying Diagnostic Codes 6600, 6603, 6604, 6825-6833 and 6840-6845, post-bronchodilator studies are required.  As the claim upon which this appeal arises was file in August 2009, the revised regulations control.

Under DC 6602, a 10 percent evaluation is contemplated for FEV-1 of 71 to 80 percent predicted, FEV-1/FVC of 71 to 80-percent, or; intermittent inhalational or oral bronchodilator therapy. 

A 30 percent evaluation is contemplated for FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70-percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. 

Assignment of a 60 percent evaluation is warranted where there is 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. 

For assignment of a 100 percent evaluation, there must be a showing of FEV-1 of less than 40 percent of predicted value, or; FEV-1/FVC of 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. 38 C.F.R. § 4.97 (2013).

The Veteran reports that he has acute attacks less than one time per year and that he has clinic visits for exacerbation less than once per year.  The record corroborates the Veteran's statements.  The Veteran's private medical records from February 2007 to June 2010 show that the Veteran saw a physician to treat symptoms, and there is no evidence that the Veteran visits a physician on a monthly basis for required care due to exacerbation related to his asthma. 

Turning to the October 2009 VA examination report, the examiner recounted the Veteran's history, complaints, and medications, and the Veteran's medical records were noted to have reviewed.  The report discusses the medications the Veteran uses to control his asthma.  The examination report states that the Veteran's asthma is controlled with "Advir50/250 disc inhaler 2 x a day, Spiriva inhaler once a day, Singular 10 mg a night, also uses albuterol inhaler about 10x a week as back up.  No hospitalizations or ER visits for asthma. No bronchitis."  It is further explained that the Veteran's treatment does not include oral steroids, parenteral steroids, antibiotics, immunosuppressive effect; and there were no side effects from the current treatment.  No significant occupational effects were noted.  The Veteran's asthma was judged to have a mild effect on usual daily activities of chores, exercise, and recreation.  A contemporaneous pulmonary function test PFT was included with the record and reviewed by the examiner. The Veteran's FEV-1 after medication was 60, and his FEV1/FVC post medication was 80. These results fall outside of the required rating criteria for a 60 percent evaluation (FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent because of bronchial asthma).

Analysis

The Veteran contends, in his NOD, that the current medication regimen that is used to treat his asthma qualifies him for a higher rating than 30 percent by virtue of including steroidal medications.  This argument appears to be a misapplied reference to the systemic therapy requirement required for an increase evaluation under DC 6602.  As previously discussed, in the October 2009 VA examination, the VA examiner noted that the Veteran was on Advair, Albuterol, Spiriva, and Singulair. The examiner lists these treatments as ["inhaled bronchodilator (intermittent), Inhaled anti-inflammatory (daily), inhaled anti-inflammatory (intermittent)."].  The Singulair was 10 mg (pill) a night. The Veteran attached photocopies of the labels for the inhaled medications and the labels themselves indicate that the medications are inhalational.  The Singulair is similarly not noted to be a corticosteroid, and the Veteran has presented no evidence that it is.  Indeed, the examiner specifically stated that the Veteran does not take an oral steroid.

By its own language, Diagnostic Code (DC) 6602 indicates that bronchial asthma treated by inhalational therapy alone is rated differently than those requiring non-inhalational, systemic therapy.  See LaPointe v. Nicholson, 21 Vet. App. 411 (2006). (noting that "DC 6602 clearly makes a distinction between the intermittent or daily use of systemic corticosteroids and the intermittent or daily use of inhaled corticosteroids").  Indeed, the Court in LaPointe affirmed the Board's previous finding that DC 6602 "requires, among other things, the systemic use of oral or parenteral, not inhaled, corticosteroids to qualify for a rating higher than 30[%]." See Id. [The Board acknowledges that LaPointe is a non-precedential decision, but notes that a non-presidential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992)].  Thus, the Board finds that the Veteran use of inhaled corticosteroids medication does not fall within the criteria of DC 6602 systemic corticosteroid use.  And while it appears the Veteran is prescribed the oral medication Singulair, this medicine is not shown to be steroidal.

The Veteran has stated that the frequency of his "steroid medications which requires refills and/or usage at least three times a year" should qualify him for a higher rating.  However, the frequency of these treatments is relevant only to courses of systemic corticosteroids and as previously discussed the Veteran's asthma treatments have not required the use of these medications.  

The Veteran has further contended in his December 2010 Form 9 (substantive Appeal, that the RO erred in "not addressing" the Veteran's steroidal medications in the Statement of the Case.  To the extent that the Veteran asserts that the RO erred in this regard, the Board does not find support for this statement and suspects that the Veteran's contention is grounded in his misunderstanding of what types of steroidal medications could be grounds for a higher rating.  Both the rating decision and the December 2010 statement of the case contain references to the medications used to treat the Veteran's asthma. 

The evidence of record clearly shows the Veteran has an ongoing problem with his respiratory symptoms; however, it does not establish that he requires monthly visits to a physician for exacerbations.  Moreover, the Veteran's VA examination has confirmed that he has not required emergency room treatment or hospitalization. Therefore, the criteria for a disability rating in excess of 30 percent simply are not met.

The Board finds, after a careful review of all pertinent evidence in light of the above-noted criteria, that the Veteran's respiratory symptomatology continues to meet or more nearly approximate the severity of bronchial asthma contemplated for the assigned 30 percent disability rating under DC 6602.

The Board has also considered entitlement to an increased evaluation on an extraschedular basis, but application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2013).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

There is no evidence that the Veteran experiences any symptoms not contemplated in the rating criteria assigned and herein upheld.  Higher ratings are available but for the reasons articulated herein, the Veteran's symptoms do not warrant the assignment of the next higher rating.  As such, the rating criteria are adequate.  Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the above-cited regulation, is not required.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).  In this case, there is no objective evidence that the Veteran's service connected asthma presents such an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular scheduler standards.  Additionally, the Veteran states that he is currently working.

If a Veteran asserts that he is unable to secure and follow a substantially gainful employment, it is presumed that the Veteran is raising a claim for Total Disability due to Individual Unemployability (TDIU).  See Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. 4.16(b).  The Veteran has not raised the issue of whether he able to secure and follow gainful employment due to his service connected disability.


ORDER

Entitlement to a disability rating in excess of 30 percent for service-connected asthma is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs