Citation Nr: 0517985 Decision Date: 07/01/05 Archive Date: 07/14/05 DOCKET NO. 00-02 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable disability rating for asthma prior to March 5, 1999, and to an increased disability rating in excess of 30 percent thereafter. 2. Timeliness of an appeal from the denial of entitlement to a compensable rating for hypertension. ATTORNEY FOR THE BOARD Saramae M. Kreitlow, Associate Counsel INTRODUCTION The veteran had active military service from June 1966 to February 1969 and September 1982 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery. In May 1998, the RO granted the veteran service connection for asthma evaluated as zero percent disabling. The veteran filed a Notice of Disagreement as to the zero percent evaluation in August 1998. A Statement of the Case was issued in December 1999. A timely appeal was received in January 2000. In March 2003, the RO granted the veteran an increased disability rating of 30 percent for his asthma effective March 5, 1999. In October 1998, the RO granted the veteran service connection for hypertension evaluated as zero percent disabling, effective in May 1998. The veteran filed a Notice of Disagreement as to the zero percent evaluation in November 1998. A Statement of the Case was issued in July 1999. The veteran attempted to perfect an appeal as to this issue in January 2000, which was certified to the Board. The Board has recharacterized issue number two to consider the timeliness of the substantive appeal. The Board may address questions pertaining to its jurisdictional authority to review a particular case, including, but not limited to, determining whether Notices of Disagreement and Substantive Appeals are adequate and timely, at any stage in a proceeding before it, regardless of whether the agency of original jurisdiction (AOJ) addressed such question(s). When the Board, on its own initiative, raises a question as to a potential jurisdictional defect, all parties to the proceeding and their representative(s), if any, will be given notice of the potential jurisdictional defect(s) and granted a period of 60 days following the date on which such notice is mailed to present written argument and additional evidence relevant to jurisdiction and to request a hearing to present oral argument on the jurisdictional question(s). The date of mailing of the notice will be presumed to be the same as the date stamped on the letter of notification. The Board may dismiss any case over which it determines it does not have jurisdiction. 38 C.F.R. § 20.101(d) (2004). By letter dated March 22, 2005, the Board advised the veteran of its intent to consider the timeliness of his appeal with respect to claim of entitlement to an increased rating for hypertension. The veteran was advised that he had 60 days from the date of the letter to respond. No response was received and thus, the Board will consider the timeliness of the veteran's appeal. FINDINGS OF FACT 1. The veteran was on at least intermittent inhalational bronchodilator therapy for his asthma at the time of his separation from service. 2. Medical evidence of record as of March 5, 1999 shows that the veteran required daily inhalational bronchodilator therapy and/or inhalational anti-inflammatory medication for his asthma. 3. The medical evidence of record does not show that the veteran's asthma is productive of FEV-1 values of 55 percent or less, FEV-1/FVC values of 55 percent or less, 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. 4. On October 19, 1998, the RO notified the veteran that it was granting him service connection for hypertension evaluated as zero percent disabling. 5. On November 24, 1998, the RO received the veteran's Notice of Disagreement as to the zero percent evaluation of his service-connected hypertension. 6. On July 20, 1999, the RO issued a statement of the case (SOC) addressing this issue. 7. A substantive appeal was not received within one year of the October 19, 1998 notification of the RO's decision or within 60 days of the July 20, 1999 SOC. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent, but not higher, have been met for service-connected asthma prior to March 5, 1999. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.97, Diagnostic Code 6602 (2004). 2. The criteria for an increased disability rating in excess of 30 percent have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.97, Diagnostic Code 6602 (2004). 3. The veteran did not timely perfect an appeal with regard to the October 1998 rating decision, which denied a compensable rating for service-connected hypertension. 38 U.S.C.A. §§ 7104, 7105, 7105A, 7108 (West 2002); 38 C.F.R. §§ 20.101(d), 20.200, 20.302, 20.305 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act The Board must first address the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). This law eliminated the concept of a well- grounded claim, redefined the obligations of VA with respect to the duty to assist, and provides an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159(b) and (c). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held, in part, that VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The Court also held that a VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Id. In the present case, VCAA notice was provided to the veteran in June 2004, subsequent to the initial AOJ decision. Where, as here, notice was not provided prior to the initial AOJ decision, the veteran has the right to VCAA content complying notice and proper subsequent VA process. The Board finds that any defect with respect to the timing of the VCAA notice requirement has been cured by the subsequent proper notice and VA process, and was, therefore, harmless error. The veteran's claim was filed in February 1998, before the enactment of the VCAA. In June 2004, the RO notified the veteran by letter of the first, second and third elements required by the Pelegrini II Court as stated above. In addition, he was specifically told that it was his responsibility to support the claim with appropriate evidence. The Supplemental Statement of the Case issued in March 2003 also notified the veteran of VA's duty to notify and assist him, advised him of the specific reasons why this particular claim was denied, and the information and evidence needed to substantiate the claim. Although the VCAA notice letter provided to the veteran did not specifically contain the fourth element (i.e., tell the claimant to provide any relevant evidence in his or her possession), the Board finds that the aforementioned documents, read as a whole, give notice to the veteran of VA's desire to obtain additional information and evidence supporting and substantiating the claim and possibly leading to such information and evidence such that the veteran may be understood to know he was to provide any relevant evidence he possessed. VA has, therefore, complied with the VCAA notice requirements. With respect to the VA's duty to assist, the RO attempted to obtain all medical records identified by the veteran. The veteran indicated that he has not received any recent treatment from private medical providers. VA treatment records related to his claim are in the file. The veteran's service medical records are also in the file. VA is only required to make reasonable efforts to obtain relevant records that the veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). VA, therefore, has made every reasonable effort to obtain all records relevant to the veteran's claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Reexamination will be requested whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327(a) (2004). Generally, reexaminations are required if it is likely that a disability has improved, if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect. Id. The RO provided the veteran appropriate VA examinations in June 2000 and January 2001. There is no objective evidence indicating that there has been a material change in the severity of the veteran's asthma since he was last examined. The veteran has not reported receiving any recent treatment, and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. The Board concludes there is sufficient evidence to rate the service-connected condition fairly. With respect to the issues involving the timeliness of appeal, the Board notes that the March 2005 letter specifically informed the veteran of the pertinent laws and regulations pertaining to substantive appeals. The veteran was advised as to why the Board thought that his appeal was defective and was essentially advised of the information and evidence needed to establish that his appeal was timely. The veteran was given an opportunity to submit written argument and additional evidence relevant to jurisdiction and/or to present oral argument on this question. The veteran has not identified additional evidence relevant to this issue and the Board is unable to identify any further development that is required. Thus, the Board finds that VA has satisfied the duty to assist the veteran. In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the veteran at every stage of this case. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis The Board has reviewed all the evidence of record, which consists of the veteran's statements; the reports of the VA examinations; and private and VA treatment records. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, it is not required to discuss each and every piece of evidence in the case. The Board will summarize the relevant evidence where appropriate. Increased Rating for Asthma Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2 (2004). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor, 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's claim for a higher evaluation for asthma is an original claim that was placed in appellate status by his disagreement with the initial rating award. In these circumstances, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The veteran's asthma is evaluated under Diagnostic Code 6602 for bronchial asthma. Effective October 7, 1996, bronchial asthma is rated as follows: 10 percent if pulmonary function tests show FEV-1 of 71 to 80 percent predicted or FEV-1/FVC of 71 to 80 percent, or there is intermittent inhalational or oral bronchodilator therapy; 30 percent if pulmonary function tests show FEV-1 of 56 to 70 percent predicted or FEV-1/FVC of 56 to 70 percent, or there is daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication; 60 percent if pulmonary function tests show FEV-1 of 40 to 55 percent predicted or FEV-1/FVC of 40 to 55 percent, or there is 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; and 100 percent if pulmonary function tests show FEV-1 less than 40 percent predicted or FEV- 1/FVC less than 40 percent, or there is 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. Supplementary information published with the promulgation of the amended rating criteria notes that The American Lung Association/American Thoracic Society Component Committee on Disability Criteria recommends testing for pulmonary function after optimum therapy and suggests that post-bronchodilator findings are the standard basis of comparison of pulmonary function. See 61 Fed. Reg. 46,723 (Sept. 5, 1996). Service medical records show that the veteran began using inhalers for his asthma as early as May 1992. On May 27, 1992, he was seen for complaints of wheezing and was diagnosed to have asthma. He was prescribed Ventolin. The next relevant treatment for his asthma was on March 27, 1993. The veteran was again given a Ventolin inhaler with instructions to take two puffs four times a day as needed. The last record of treatment in service was on October 1997. The veteran reported taking no medications. He was again prescribed a Ventolin inhaler for his asthma. It appears he was also placed on another medication for preventive maintenance of which he was supposed to take two puffs twice daily. The only pulmonary function testing performed during service was on September 6, 1989, that was determined to be within normal limits. Although in October 1997, the veteran appears to have been placed on daily medication, at his retirement examination he did not report being on any medications. It was noted by the examiner, however, that the veteran has a history of asthma and uses inhalers. Post-service medical records for the veteran's asthma consist only of VA treatment. VA Primary Care treatment records from November 1998 to August 2002 indicate the veteran has a diagnosis of asthma, which is controlled, but there is no indication that the veteran is using inhalers to control his asthma. The veteran did undergo pulmonary function testing in January 2000, June 2000 and January 2001. The results of the January 2000 test show a FEV-1 of 61.9 percent predicted and FEV- 1/FVC of 77 percent. The results of the June 2000 test, however, were deemed inconclusive, as the veteran was unable to cooperate with the examination making interpretation spirometry impossible. The results of the January 2001 test shows a FEV-1 of 66.8 percent predicted and FEV-1/FVC of 75 percent. The June 2000 and January 2001 pulmonary function tests were performed in conjunction with VA examinations ordered by the RO. At the June 2000 VA examination, the veteran reported he was on Vanceril inhaler two puffs four times a day. The report of the January 2001 VA examination does not indicate what medications the veteran was taking for his asthma. VA pharmacy records from March 1999 to June 2000 indicate that as of March 5, 1999 the veteran was taking Triamcinolone Oral Inhaler, dosage two puffs twice a day, and Albuterol Oral Inhaler, dosage two puffs every six hours as needed. The veteran argues that the evidence is consistent with an evaluation of 30 percent for his service-connected asthma. The Board notes that, although the RO initially granted the veteran a noncompensable disability rating effective May 1, 1998, in March 2003 the RO granted the veteran a 30 percent disability rating for his asthma effective March 5, 1999, the first date it is ascertainable that the veteran was on daily inhalational or oral bronchodilator therapy. The first issue the Board must consider, therefore, is whether the veteran is entitled to a compensable rating for the period of May 1, 1998 to March 4, 1999. After reviewing all the evidence and resolving all reasonable doubt in the veteran's favor, the Board finds that the veteran is entitled to a disability rating of 10 percent, but no higher, for his service-connected asthma from May 1, 1998 to March 4, 1999. The service medical records are clear that the veteran was being treated at least periodically with inhalers from May 1992 until his separation in 1998. It was noted on his separation examination paperwork that he had a history of asthma and uses inhalers. Although the medical records from his separation on April 30, 1998 to March 4, 1999 do not explicitly indicate that the veteran was using inhalers during that period, the Board finds that there is a reasonable doubt on that question based on the treatment records reflecting his asthma was under control, and he had used inhalers during his last six years in service for control of his asthma. In resolving reasonable doubt in favor of the veteran, the Board finds, therefore, that he was on intermittent inhalational or oral bronchodilator therapy from May 1, 1998 to March 4, 1999, which is compensated as 10 percent disabling under Diagnostic Code 6602. The veteran is not entitled to a higher disability rating because the medical evidence does not show pulmonary function tests demonstrating FEV-1 of 56 to 70 percent predicted or FEV- 1/FVC of 56 to 70 percent, or there is daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication. For the period commencing on March 5, 1999 and thereafter, the Board finds that the veteran is not entitled to a disability rating in excess of 30 percent for his service- connected asthma. The medical evidence does not show reliable pulmonary function tests demonstrating FEV-1 values of 40 to 55 percent predicted or FEV-1/FVC values of 40 to 55 percent, or that there was 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. The June 2000 pulmonary function test does show a FEV-1 value of 47.2 percent predicted after bronchodilator, but this test was deemed to be inconclusive and cannot therefore be used for rating purposes. The other two studies showed FEV-1 values of 61.9 percent predicted and 66.8 percent predicted; and FEV-1/FVC values of 77 percent and 75 percent, which fall short of the required readings for a 60 percent rating. In addition, the medical evidence does not show that the veteran had monthly visits to his physician for care of exacerbations or that he had at least three courses of systemic (oral or parenteral) corticosteroids per year. In conclusion, the veteran is entitled to an increased rating of 10 percent for his service-connected asthma from May 1, 1998 to March 4, 1999, but he is not entitled to a disability rating in excess of 30 percent for the period commencing on and after March 5, 1999. Timeliness of the Substantive Appeal for an Increased Rating for Hypertension An appeal consists of a timely filed notice of disagreement (NOD) in writing and, after a Statement of the Case (SOC) has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2004). In October 1998, the RO granted the veteran service connection for hypertension, but denied a compensable evaluation. The veteran was notified of this decision by letter dated October 19, 1998, and an NOD was received November 24, 1998. On July 22, 1999, the RO issued a SOC addressing this issue. Except in the case of simultaneously contested claims, a substantive appeal must be filed within 60 days from the date that the AOJ mails the SOC to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC and the date of mailing the letter of notification of the determination will be presumed to the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(b)(1). Except in the case of simultaneously contested claims, if (i) a claimant submits additional evidence within one year of the date of mailing of the notification of the determination being appealed, and (ii) that evidence requires, in accordance with § 19.131 of this title, that the claimant be furnished a SSOC, then the time to submit a substantive appeal shall end not sooner than 60 days after such SSOC is mailed to the appellant, even if the 60-day period extends beyond the expiration of the one-year appeal period. 38 C.F.R. § 20.302(b)(2). When the Rules require that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by the VA. In calculating this five-day period, Saturdays, Sundays and legal holidays will be excluded. 38 C.F.R. § 20.305(a). In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be including the computation. 38 C.F.R. § 20.305(b). The SOC in this case was mailed on July 22, 1999. Sixty days from that date is September 20, 1999. The one-year period from the date of the adverse determination is October 19, 1999. Thus, the later period is October 19, 1999 and the veteran had until that time to perfect his appeal. The Board did not identify any evidence submitted between the July 1999 SOC and the end of the one-year period that would have required the issuance of a SSOC. On review, the postmark date is not of record. However, the veteran signed and dated a VA Form 9 on February 15, 2000, which is after the expiration of the appeal period. His substantive appeal was date stamped as being received on February 24, 2000. Even applying the postmark rule, the veteran's appeal is not considered timely. The Board has the authority to determine its own jurisdiction, see 38 C.F.R. § 20.101(d), and under the circumstances of this case, dismisses the veteran's appeal with regard to the issue of a compensable rating for service- connected hypertension as untimely. ORDER Entitlement to an initial compensable disability rating of 10 percent, but no higher, for asthma effective from May 1998 to March 5, 1999 is granted, subject to controlling regulations governing the payment of monetary benefits. Entitlement to an increased disability rating in excess of 30 percent effective on and after March 5, 1999 is denied. The issue of entitlement to a compensable rating for hypertension is dismissed because the veteran did not timely perfect his appeal. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs