Citation Nr: 0814429 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-13 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION The veteran served on active duty from June 1981 to June 1986. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO) which granted service connection for asthma and assigned a 30 percent evaluation effective March 8, 2002. The veteran testified at a video conference hearing before the undersigned Veterans Law Judge in November 2004; the hearing transcript has been associated with the claims file. The Board remanded the case to the RO for further development in January 2005. Development has been completed and the case is once again before the Board for review. FINDINGS OF FACT 1. From August 23, 2002 to January 26, 2004, the veteran's asthma resulted in a FEV-1/FVC of 53 percent; but did not result in a FEV-1 predicted or FEV-1/FVC of less than 40 percent; more than one attack per week with episodes of respiratory failure, and did not require daily use of high dose corticosteroids or immuno-suppressive medications. 2. From January 27, 2004, the veteran's asthma does not result in a FEV-1 predicted or FEV-1/FVC of 40 to 55 percent; monthly visits to a physician for required care of exacerbations; or at least three courses of systemic corticosteroids per year. CONCLUSIONS OF LAW 1. From August 23, 2002 to January 26, 2004, the criteria for 60 percent evaluation for asthma have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 4.97, Diagnostic Code 6602 (2007). 2. From January 27, 2004, the criteria for an evaluation in excess of 30 percent for asthma have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 4.97, Diagnostic Code 6602 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The Board finds that VA has met all statutory and regulatory VCAA notice and duty to assist requirements. See 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a May 2002 letter, VA informed the veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the veteran was responsible. VA also asked the veteran to provide any evidence that pertains to his claim. May 2007 correspondence provided the veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that this notice was not received prior to the initial rating decision. The veteran was not provided VCAA notice of the information and evidence necessary to substantiate an increased-compensation claim, including general notice of the relevant criteria necessary for entitlement to a higher disability under applicable Diagnostic Codes in accordance with the recent decision of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Despite any inadequate notice, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In that regard, the May 2002 letter addressed the veteran's original application for service connection. In September 2002, the RO awarded service connection for asthma and assigned a 30 percent evaluation effective the date of the claim. Therefore, the May 2002 letter served its purpose in providing VCAA notice and its application is no longer required because the original claim has been "substantiated." There is no indication that any notice deficiency reasonably affects the outcome of this case. Thus, the Board finds that any failure is harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). The veteran's service medical records, VA and private treatment records, VA examinations, and a Board hearing transcript have been associated with the claims file. VA has provided the veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. B. Law and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The CAVC has held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Because the evidence of record does establish distinct time periods where the veteran's service-connected disability results in symptoms that would warrant different ratings, the Board finds that a staged rating is warranted in this case. The veteran has been assigned a 30 percent evaluation under Diagnostic Code 6602 for bronchial asthma. Diagnostic Code 6602 assigns a 30 percent evaluation with a 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. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2007). A 60 percent evaluation is assigned with a 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. Id. A 100 percent evaluation is assigned with a FEV-1 of less than 40 percent predicted, or; FEV-1/FVC of less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; bronchial asthma requiring daily use of high dose corticosteroids or immuno-suppressive medications. Id. A note to Diagnostic Code 6602 states that in the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. Id. The Board notes that under VA's rating procedures, use of post-bronchodilator findings is standard in pulmonary assessment and assures consistent evaluations. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilation). An August 23, 2002 VA examiner noted that the veteran was treated with a Serevent inhaler for asthma. The August 23, 2002 VA pulmonary function test reflects a FEV-1 of 68 percent predicted and a FEV-1/FVC of 53 percent after use of a bronchodilator. It was noted that the veteran had taken his Serevent inhaler approximately 2 to 4 hours prior to his pulmonary function test. A January 27, 2004 VA examination shows that the veteran's medications included Singulair, Aerobid, Combivent inhaler, and montelukast. A pulmonary function test was completed prior to examination. A January 2004 VA pulmonary function test reflects a FEV-1 of 85.2 percent predicted and a FEV- 1/FVC of 65 percent after use of a bronchodilator. A February 2007 VA examiner noted that he did not have the claims file to review. The veteran reported that he had asthmatic attacks three to four times per year requiring care in an urgent care center. He did not have at least monthly visits to a physician for care of exacerbations. The veteran reported that he did require oral steroids at least three times per year. The examiner noted that he did not have any medical records for verification and that this was based on the veteran's history. The veteran did not require daily use of systemic corticosteroids. He did not have more than one attack of asthma per week with episodes of respiratory failure. A pulmonary function test reflects a FEV-1 of 76 percent predicted and a FEV-1/FVC of 65 percent after use of a bronchodilator. The February 2007 VA examiner submitted a March 2007 addendum after receiving and reviewing the veteran's claims file. The examiner stated, with respect to whether or not the veteran required intermittent courses of corticosteroids, that at the time of the February 2007 VA examination he could only answer per the veteran's history that he gave that day, which was "yes". The examiner stated that upon review of the veteran's claims file, that was not verified. He could not find any evidence that the veteran required intermittent use of oral or parenteral corticosteroids issued from VA, nor any outside institutions. Therefore, the examiner opined that it was doubtful that the veteran required systemic corticosteroids at least three times per year. The veteran reported during his videoconference hearing, that he was seen at urgent care centers for exacerbations of asthma and other breathing difficulties. Private treatment records show that the veteran was admitted in September 2002 to St. Anthony's Medical Center for difficulty breathing. The veteran has been seen at St. Luke's Urgent Care Center for exacerbations of asthma, bronchitis, and pneumonia. He was seen in January 2004 and was diagnosed with bronchitis and asthma. He was seen in June 2004 for an acute exacerbation of asthma. He was seen for pneumonia in October 2004. The veteran continued to have symptoms of pneumonia and difficulty with breathing through November 2004. The veteran was seen at the Des Peres Hospital in October 2004 for an upper respiratory tract infection with reactive airway disease, also noted as pneumonia. 1. From August 23, 2002 to January 26, 2004 From August 23, 2002 to January 26, 2004, the Board finds that a higher 60 percent evaluation is warranted for asthma. An August 23, 2002 VA pulmonary function test reflects a FEV- 1/FVC of 53 percent. Therefore, the Board finds that a 60 percent evaluation is warranted during this time period where medical evidence reflects a FEV-1/FVC between 40 to 55 percent. See 38 C.F.R. § 4.97, Diagnostic Code 6602. A higher 100 percent evaluation is not warranted where the medical evidence of record does reflect a FEV-1 predicted or FEV-1/FVC of less than 40 percent; more than one asthma attack per week with episodes of respiratory failure, or required daily use of high dose corticosteroids or immuno- suppressive medications. 2. From January 27, 2004 From January 27, 2004, the Board finds an increased 60 percent evaluation is not warranted under Diagnostic Code 6602 where current medical evidence does not reflect a FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic corticosteroids. See 38 C.F.R. § 4.97, Diagnostic Code 6602. A January 27, 2004 pulmonary function test reflects a FEV-1 of 85.2 percent predicted and a FEV-1/FVC of 65 percent. A February 2007 VA pulmonary function test reflects a current FEV-1 of 76 percent predicted and a FEV-1/FVC of 65 percent. From January 27, 2004, the Board finds that the evidence does not reflect a current FEV-1 of 40 to 55 percent predicted or FEV-1/FVC of 40 to 55 percent to warrant a higher 60 percent evaluation. Although veteran has been seen for emergent care due to asthma, or other complaints related to difficulty breathing, the veteran is not shown to have had at least monthly visits to a physician for required care of exacerbations of asthma. Private medical records show that the veteran was seen for emergent care in January 2004, June 2004, and was seen for treatment for pneumonia without resolution of symptoms in October 2004 and November 2004. A February 2007 VA examination indicates that the veteran reported having asthmatic attacks three to four times per year requiring care in an urgent care center. However, the veteran did not have at least monthly visits to a physician for care of exacerbations. Finally, competent medical evidence does not show that the veteran requires intermittent (at least three per year) courses of systemic corticosteroids for control of asthma. Although the veteran has reported that he requires the use of systemic corticosteroids for asthma, his claims are not supported by VA and private treatment records. Thus, the Board finds that the veteran's reported use of systemic corticosteroids is not probative. VA medication lists and private treatment reports do not reflect use of systemic corticosteroids for treatment of asthma. The February 2007 VA examiner stated in a March 2007 addendum, after reviewing the veteran's claims file, that intermittent use of systemic corticosteroids was not verified. The examiner could not find any evidence which showed that the veteran required intermittent use of oral or parenteral corticosteroids issued from VA, nor any outside institutions. Therefore, he determined that it was doubtful that the veteran required systemic corticosteroids at least three times per year. In light of the foregoing, the Board finds that from January 27, 2004, a higher evaluation for asthma is not warranted. In making this determination, the Board has considered the veteran's own statements in support of his claim. However, the most probative evidence of record does not establish the level of disability required to warrant a higher evaluation for asthma. C. Conclusion From August 23, 2002 to January 26, 2004, the Board concludes that the evidence supports a 60 percent rating for asthma. From January 27, 2004, the preponderance of the evidence is against the claim for a higher evaluation for service- connected asthma and a 30 percent evaluation is appropriate. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the veteran's claim. ORDER From August 23, 2002 to January 26, 2004, a 60 percent rating, but no more, is granted for asthma subject to the law and regulations governing the payment of monetary benefits. From January 27, 2004, an increased evaluation for asthma, in excess of 30 percent is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs