Citation Nr: 1449389 Decision Date: 11/06/14 Archive Date: 11/12/14 DOCKET NO. 12-20 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a disability rating in excess of 30 percent for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from June 1984 to October 1984 and from April 1986 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. The Veteran testified at a January 2013 videoconference hearing by the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. FINDING OF FACT The Veteran's asthma has not been manifested by findings of Forced Expiratory Volume in one second (FEV-1) of less than 66 percent or Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of less than 78 percent; it has not required at least monthly visits to a physician for required care of exacerbations or at least three per year courses of systemic corticosteroids. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for asthma have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.97, Diagnostic Code 6602 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A VA letter issued in October 2011 satisfied the duty to notify provisions with respect to the increased rating claim, and notified the Veteran of the regulations pertinent to the establishment of an effective date and disability rating. In addition, the duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service and post-service treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Further, the Veteran was provided a VA examination in October 2011, reflecting sufficient details to determine the current severity of the Veteran's service-connected asthma. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Veteran's Board hearing, the Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. The representative and the Veterans Law Judge (VLJ) solicited information regarding any outstanding evidence pertinent to the claim on appeal and asked questions to ascertain the current state of the Veteran's asthma. The hearing focused on the evidence necessary to substantiate the Veteran's claim for increased rating. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is currently in receipt of a 30 percent disability rating under Diagnostic Code 6602, which pertains to bronchial asthma. The Board has considered the applicability of other diagnostic codes, but as the Veteran has not been diagnosed with any pulmonary disorder other than asthma, the Board finds that Diagnostic Code 6602 is the most appropriate diagnostic code for rating the Veteran's disability. Accordingly, the Board will proceed with an analysis of the Veteran's disability under this diagnostic code. Under Diagnostic Code 6602, a 30 percent evaluation 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 evaluation 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) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted for an FEV-1 of less than 40 percent of predicted; or an FEV1/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, Diagnostic Code 6602 (2013). Post-bronchodilator studies are required when pulmonary function tests (PFTs) are performed for disability evaluation purposes, except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done. When evaluating based on PFTs, post-bronchodilator results are to be utilized in applying the evaluation criteria in the Rating Schedule unless the post- bronchodilator results were poorer than the pre-bronchodilator results. In those cases, the pre- bronchodilator values are to be used for rating purposes. 38 C.F.R. § 4.96. A January 2011 VA pulmonary consultation report reflects that the Veteran's last visit was 1 1/2 years ago and that he reported to be doing well. He was able to wean off Flovent, and now was only on Advair, and rarely on Albuterol. His symptoms were triggered by cold, grass, stress, and pollen. He had been on Advair 500/50 bid, in addition to Flovent 2 puffs bid for 14 years, without change in medications. It was noted that he had tried in numerous occasions with a private pulmonologist different inhalers and inhaler combinations, including Foroterol, Atrovent, Mometasone, Flunisolide, without much help. The impression was asthma, stably controlled for the past 14 years and currently doing well on full dose of Advair and additional Flovent-but now totally off Flovent. It was noted that PFT showed moderate obstruction with bronchodilator responsiveness and slight elevated Immunoglobulin E. A VA respiratory examination was conducted in October 2011. The report noted a diagnosis of asthma. The Veteran was currently on Advair 500/50 bid, Singulair, Flovent (restarted from an old prescription 2 1/2 months ago), and Albuterol inhaler. He used his rescue inhaler about 4 to 5 times per week. The examiner noted that the Veteran's respiratory condition required intermittent use of inhalational bronchodilator therapy using inhaled medications, such as Advair, Flovent, and Singulair, but did not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, or antibiotics. It was noted that the Veteran had not had any asthma attacks or exacerbations, any physician visits for required care of exacerbations, or any episodes of respiratory failure, in the past 12 months. The examiner reported that no pulmonary mass, consolidation, or effusion was shown on an August 2008 X-ray report. Pulmonary function testing dated in November 2007 revealed pre-bronchodilator FVC of 81 percent of predicted and post-bronchodilator FVC of 91 percent of predicted, pre-bronchodilator FEV-1 of 66 percent of predicted and post-bronchodilator FEV-1 of 71 percent of predicted, and a pre-bronchodilator FEV-1/FVC ratio of 82 percent and a post-bronchodilator FEV-1/FVC ratio of 78 percent. Spirometry diffusion capacity (DLCO) was 119 percent of predicted. The examiner noted that these PFT results reflected the Veteran's current pulmonary function and the FEV-1/FVC ratio most accurately reflected the Veteran's current pulmonary function. The examiner noted that the Veteran's respiratory condition impacted his ability to work because of difficulty with heavy manual labor due to asthma symptoms. A November 2011 pulmonary telephone note reflects that the Veteran reported recent increase in exacerbations due to weather changes and had been using increased Albuterol as needed. He had been doing well off extra inhaled steroids in addition to his Advair but reported due to recent weather changes his asthma had been hard to control. A February 2012 VA pulmonary outpatient report reflects that the Veteran was seen for follow-up on asthma. He was on Advair 500/50 bid and Flovent 2 puffs bid for approximately 15 years. The assessment was stable asthma, most likely with significant airway remodeling based on PFT. In a July 2012 letter, Dr. Charles Dela Cruz stated that the Veteran's asthma required daily maximum dosage of inhaled combination long acting beta-agonist/steroids (Advair), as well as additional inhaled steroids (Flovent) for more than a decade and that the Veteran had been unable to wean from these dosages for his severe asthma. Dr. Dela Cruz further stated that the Veteran's asthma required additional inflammatory modulator drugs, such as Singulair, along with medications that treated his sinus condition and allergies. As noted above, to warrant a disability rating greater than 30 percent under Diagnostic Code 6602, there would need to be evidence of FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC ratio 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. During the applicable rating period, pulmonary testing results show values of no less than 66 percent of FEV-1 and no less than 78 percent of FEV-1/FVC, which is greater than the 55 or lower percentage needed for a higher rating. Additionally, the October 2011 VA examination specifically noted that the Veteran's respiratory condition did not require the use of oral or parenteral corticosteroid medications and he had not seen a physician for required care of asthma exacerbations in the previous year. In this regard, the Veteran testified during the January 2013 Board hearing that his current medications include Albuterol, Advair, and Fluticasone inhalers, and Monalucast tablets. Further, Dr. Charles Dela Cruz indicated that the Veteran's asthma required daily maximum dosage of inhaled combination long acting beta-agonist/steroids (Advair), additional inhaled steroids (Flovent), as well as additional inflammatory modulator drugs, such as Singulair. However, despite the reported severity of the Veteran's respiratory disability, this evidence does not demonstrate that the disability has required the use of systemic oral or parenteral corticosteroid medications, as specifically noted in the October 2011 VA examination report. Consequently, a disability rating in excess of 30 percent for asthma is not warranted. See 38 C.F.R. § 4.97, Diagnostic Code 6602 (2013). The Veteran is competent to report the observable symptoms related to his asthma, such as difficulty breathing. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); see also Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 -37 (Fed. Cir. 2006). During the January 2013 Board hearing, the Veteran reported symptoms of shortness of breath with certain exercises and limited physical ability to interact with his children or walk due to his service-connected asthma. The Board finds his complaints are credible, and such complaints have been considered in this case. Nevertheless, evaluations for VA purposes have not shown the severity required for a higher rating for the disability at issue at any time during the rating period under appeal. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1) (2013). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular rating in this case is adequate. The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected asthma. See Thun, 22 Vet. App. at 115. The Veteran's asthma is evaluated by 38 C.F.R. § 4.97, Diagnostic Code 6602, which contemplates the of FEV-1 and FEV-1/FVC values shown on objective pulmonary functions tests, as well as the frequency and intensity of treatment required for the exacerbations of the respiratory condition. The Veteran does not have symptoms associated with this disability that have been unaccounted for by the currently assigned schedular rating. Accordingly, a comparison of the Veteran's symptoms and functional impairments resulting from this disability with the pertinent schedular criteria does not show that his service-connected asthma presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). As such, referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Ratings in excess of the currently assigned rating are provided for certain manifestations of the respiratory disability, but the evidence demonstrated that those manifestations were not present for any distinct period during the rating period under appeal. See Hart, 21 Vet. App. at 509. The Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), no additional symptoms are shown that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the October 2011 VA examiner noted that the Veteran's respiratory disability impacted his ability to work because of difficulty with heavy manual labor due to asthma symptoms. Further, during the January 2013 Board hearing, the Veteran contended that he had limited employment opportunities due to his respiratory disability, in terms of the type of jobs. However, he also stated that he was taking advantage of rehabilitation and obtaining skills so that he could work in a job that did not require physical activity. Based on the foregoing, the evidence of record does not show that the disability at issue render him unable to obtain and follow substantially gainful employment. Accordingly, the Board concludes that a claim for TDIU has not been raised. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning a higher evaluation, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a disability rating in excess of 30 percent for asthma is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs