Citation Nr: 0810768 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-03 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to restoration of a 100 percent evaluation for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran had active military service from May 1979 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA), Regional Office (RO) that reduced the evaluation assigned for asthma from 100 percent to 30 percent, effective October 2002. This case was most previously before the Board in August 2007 and was remanded for development in accordance with an April 2007 Order of the United States Court of Appeals for Veterans Claims and the April 2007 Joint Motion of the parties. This case has been advanced on the docket. FINDINGS OF FACT 1. A March 1998 rating decision assigned a 100 percent evaluation for asthma, and in April 2000 the Board subsequently assigned an effective date of February 20, 1997 for the 100 percent rating. 2. On pulmonary function study on VA examination in February 1998, pre-bronchodilator Forced Expiratory Volume in one second (FEV-1) was 55 percent of predicted, and pre- bronchodilator ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) was 74, with use of high dose corticosteroids. 3. On pulmonary function study on VA examinations in September 2000, and January 2002, the veteran had post- bronchodilator FEV-1 of 69, and 65, respectively; and post- bronchodilator FEV-1/FVC of 81 and 71, respectively, with no use of high dose corticosteroids demonstrated from March 1998 through June 2002. 3. The VA examinations in September 2000 and January 2002 were as full and complete as the February 1998 VA examination on which the 100 percent rating was assigned. CONCLUSION OF LAW The reduction of the assigned 100 percent evaluation for asthma was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.343, 3.344, 4.97, Diagnostic Code 6602 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in May 2003 the veteran was informed of the evidence and information necessary to substantiate his claim, the information required of him to enable VA to obtain evidence in support of his claim, the assistance that VA would provide to obtain evidence and information in support of his claim, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. The VCAA letter informed the veteran that he should submit any medical evidence pertinent to his claim. The Board acknowledges that the May 2003 VCAA notice letter characterized the issue as entitlement to an increased rating for asthma, as the appeal at that time included the issue of entitlement to restoration of a 100 percent rating for asthma and entitlement to an increased rating for asthma. However, an April 2002 letter mailed with the March 2002 rating decision provided the veteran with the notice and procedure requirements that need to be followed when a rating is reduced, as provided by 38 C.F.R. § 3.105(e). Further, the March 2002 rating decision, which cited 38 C.F.R. § 3.344, was mailed more than 60 days prior to when the final rating decision was issued. The April 2002 letter also informed the veteran that he may submit evidence to show that the RO should not make the change. In addition, the veteran was given notice that he could request a hearing. Thus, the Board finds that all VCAA notice and rating reduction notice and procedures were followed. As the claim adjudicated herein is denied, no disability rating or effective date will be assigned, and there can be no possibility of any prejudice to the appellant under the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran's service medical records are associated with the claims file, as are private and VA medical records. The veteran has not referenced any other pertinent, obtainable evidence that remains outstanding, and in a statement received in November 2007 the veteran indicated that he had no further evidence to submit. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. Analysis Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability, will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. 38 C.F.R. § 3.344 provides additional criteria and considerations to take into account when determining whether a reduction in a rating is warranted. The regulation provides, however, that these provisions apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those in which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., bronchial asthma, will not be reduced on any one examination except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The provisions of paragraph (a) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexamination disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). A 100 percent evaluation may be assigned for bronchial asthma when FEV-1 is less than 40-percent predicted, or; FEV-1/FVC is 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. Where FEV-1 is 40-55 percent predicted, or; FEV-1/FVC of 40-55 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 60 percent evaluation may be assigned. Diagnostic Code 6602. In a March 1998 rating action, the RO, based on the findings from a February 1998 VA respiratory examination, assigned a 100 percent evaluation for asthma, effective December 18, 1997. The veteran disagreed with the effective date assigned and, by decision in April 2000, the Board found that the proper effective date for a 100 percent evaluation for asthma was February 20, 1997. As noted above, a 100 percent evaluation may be reduced on the showing of material improvement in the condition. 38 C.F.R. § 3.343. Moreover, for certain conditions, including asthma, when, as in this case, a rating has been in effect for five or more years, a reduction must comply with the provisions of 38 C.F.R. § 3.344. It must be emphasized that in determining the appropriateness of a reduction of an assigned rating, the focus must be on the evidence of record at the time of the rating action. Reports of pulmonary function studies performed on September 2000 and January 2002 VA examinations document that the veteran's condition had clearly improved when compared with the results from the February 1998 VA respiratory examination. On pulmonary function study in February 1998, the veteran's pre-bronchodilator FEV-1 was only 55 percent of predicted, and his pre-bronchodilator FEV-1/FVC was 74. Post- bronchodilator pulmonary function findings were not reported. It is important to note that at the time of the February 1998 VA examination, there were guidelines indicating that only the post- bronchodilation results are to be considered for VA purposes. The explanatory comments in the Federal Register make clear, post-bronchodilation pulmonary function test results are to be used in evaluating the severity of the lung disease under the Schedule. 61 Fed. Reg. 46,720, 46, 723 (Sept. 5, 1996), effective October 7, 1996, (in response to a comment recommending that VA specify that pulmonary function be tested before bronchodilation in order to reflect ordinary conditions of life, VA disagreed, finding "The American Lung Association/American Thoracic Society Component Committee on Disability Criteria recommends testing for pulmonary function after optimum therapy. The results of such tests reflect the best possible functioning of an individual and are the figures used as the standard basis of comparison of pulmonary function. Using this standard testing method assures consistent evaluations."). Nevertheless, the Board notes that the veteran's post- bronchodilator FEV-1 was 69 percent of predicted on pulmonary function study in September 2000, and 65 percent of predicted in January 2002. His post-brondilator FEV-1/FVC was 81 on pulmonary function testing in September 2000, and 71 on pulmonary function testing in January 2002. The Board further observes that the January 2002 VA examiner noted that the veteran's asthma was stable and had improved with the use of a bronchodilator. The Board recognizes that a comparison of pre-bronchodilator findings with post-bronchodilator findings may not serve as a basis for finding material improvement in the disability at issue. However, it is significant to note that neither, at the time of the award of a 100 percent rating, or thereafter, did the veteran demonstrate pulmonary function test findings which met the criteria for a 100 percent rating under Diagnostic Code 6602. Significantly, the Board observes that based on the medications noted on the February 1998 VA examination report, it was determined that the veteran required the daily use of high dose corticosteroids in treating his asthma. However, no such medications (as noted by October 2007 reviewing VA physician) were shown to be needed from March 1998 through June 2002. This represents sustained material improvement in the veteran's asthma. Further, the examination results on which the reduction was based were as full and complete as the February 1998 examination on which the 100 percent was initially assigned. As such, the Board finds that restoration of the 100 percent rating is not supported by the evidence of record. ORDER Restoration of a 100 percent evaluation for asthma is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs