Citation Nr: 0814717 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 02-00 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased (compensable) rating for bronchitis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran had active military service from June 1973 to November 1979. This matter comes to the Board of Veterans' Appeals (Board) following a September 2000 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2002, the veteran testified during a hearing before the undersigned Veterans Law Judge sitting at the RO. In February 2006, the Board denied the veteran's claim for service connection for post-traumatic stress disorder (PTSD) and also denied her claim for a compensable rating for allergic rhinitis with sinusitis. It remanded the veteran's claim for a compensable rating for bronchitis to the originating agency for additional development. Following further development of the record on appeal, the Appeals Management Center (AMC) denied the veteran's claim and returned this matter to the Board. FINDINGS OF FACT 1. Pulmonary function testing (PFT) reflects FEV-1/FVC ratio percentages of 80 and 79, an FEV-1 not lower than 100 percent of predicted value, and normal diffusion studies; clinical findings do not reflect evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, respiratory failure, or the need for oxygen therapy. 2. The veteran failed to report to a November 6, 2007 reexamination scheduled for the purpose of conducting additional testing in conjunction with her claim on appeal; she has not shown good cause for her failure to report. CONCLUSION OF LAW The criteria for a rating to 10 percent for bronchitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6600 (2007); 38 C.F.R. § 4.96 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In a case involving a rating increase, as is the case here, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify a claimant that, to substantiate a claim, the claimant must either provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in the severity of the disability and the effect that the worsening has on the claimant's employment and daily life. Vasquez- Flores v. Peake, 22 Vet. App. 37 (2008). Additionally, if the particular diagnostic code under which the claimant is currently rated authorizes higher disability ratings based on specific criteria beyond the noticeable effect of the worsening of the disability and its effect upon the claimant's employment and daily life, VA must provide, at least, general notice of the information and evidence necessary to establish these more specific criteria. Id. Here, the Board finds that all notification and development action needed to render a decision on the claim for a compensable rating for bronchitis on appeal has been accomplished. In particular, March 2004 and March 2006 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In those letters, the agency of original jurisdiction (AOJ) also notified the veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. It requested that the veteran identify any medical providers from whom she wanted the AOJ to obtain and consider evidence. The AOJ also invited the veteran to submit evidence in support of her claim. Thereafter, the veteran was afforded the opportunity to respond. Hence, the Board finds that the veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate her claim. The Board also notes that the September 2000 rating decision provided the veteran notice of the specific criteria necessary to obtain a compensable (10 percent) rating under the diagnostic code relevant to her claim. Additionally, in a December 2001 statement of the case, the RO notified the veteran of the rating criteria governing her claim (38 C.F.R. § 4.97, Diagnostic Code 6600), and thus, what the evidence needed to show to substantiate a compensable rating. The Board finds that, the veteran could reasonably infer from the rating criteria that if an increase in her service-connected bronchitis were found, a rating from 10 percent to as much as 100 percent could be assigned based on the severity of her bronchitis. Furthermore, in her January 2002 VA Form 9 (Appeal to Board of Veterans' Appeals), the veteran reported that her service-connected bronchitis caused her "great discomfort and lost work." She also testified in September 2002 on the effect bronchitis had on her daily life and employment. Thus, there is lay evidence and testimony of record as to the effect the veteran's bronchitis has on her employment and daily life. The Board finds that not only has the veteran been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond, but the AOJ also readjudicated the claim by way of a January 2008 supplemental statement of the case (SSOC) after notice was provided. The Board further notes that although the United States Court of Appeals for Veterans Claims (Court) has held that post-decisional documents are inappropriate vehicles with which to provide notice, the AOJ in this case provided notice of specific rating criteria that was followed by a readjudication of the veteran's claim. The Board concludes that during the administrative appeal process, the veteran was provided the information necessary such that defective pre-decisional notice errors were in effect cured. Vazquez- Flores, 22 Vet. App. at 49. Consequently, it is not necessary to remand this case to require additional notification in accordance with Vazquez-Flores. See e.g., Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Board thus finds that "the appellant [was] provided the content-complying notice to which [she] [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Otherwise, nothing about the evidence or any response to the AOJ's notification suggests that the case must be readjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the veteran's claim. Here, identified treatment records have been associated with the claims file and the veteran has been provided VA examinations in support of her claim. The Board notes that the veteran underwent a VA examination in March 2004, the report of which is of record. The report of examination notes that a PFT was to be undertaken, although no report of a PFT is of record and it is not entirely clear whether such test was performed. As noted in the decision below, the veteran's PFTs in March 2001 and March 2005 are similar with respect to the reported findings. Otherwise, the veteran has not identified, and the record does not indicate, existing records that need to be obtained pertinent to the claim on appeal. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. With respect to the above, the Board notes that following its remand of her claim in February 2006, the veteran was provided a VA examination in September 2006. Following its review of the report of September 2006 VA examination, the AMC determined that a reexamination of the veteran was necessary to conduct additional medical tests to help substantiate her claim. An October 2007 letter from the VA Medical Center (VAMC) in Dallas, Texas notified the veteran that she had been scheduled for a November 6, 2007 appointment (examination). The veteran was advised in the letter that if she was unable to keep her appointment that she was to call in advance. In a report of contact (VA Form 119) dated later in November 2007, the AMC was notified by the Dallas VAMC that the veteran had failed to report for her scheduled examination. In the above-noted January 2008 SSOC the AMC noted that the veteran had failed to report for the November 6, 2007 examination. Here, the veteran has not provided any explanation regarding her failure to report for her scheduled November 6, 2007 examination. A review of the claims file does not reflect that the veteran has contacted the AMC (or her service representative or the RO) and requested that she be rescheduled for the examination that she missed. Medical findings associated with the veteran's reexamination may have warranted a higher rating than that assigned in the decision below. In light of the above, the Board finds that the veteran has failed to report to a scheduled VA examination without showing good cause for her failure to report. See 38 C.F.R. § 3.655(a), (b) (2007). II. Analysis Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has also 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. If VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Respiratory disorders are evaluated under 38 C.F.R. § 4.97, Diagnostic Codes 6600 through 6817 and 6822 through 6847. Pursuant to 38 C.F.R. § 4.96(a), ratings under these diagnostic codes will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a). The veteran is currently in receipt of a noncompensable (0 percent) rating for bronchitis under 38 C.F.R. § 4.97, Diagnostic Code 6600. Under this code, a 10 percent rating is warranted where forced expiratory volume in one second (FEV-1) is 71- to 80-percent predicted; or if the FEV-1 to forced vital capacity (FVC) ratio is 71 to 80 percent; or if diffusion capacity of the lung for carbon monoxide (DLCO) by the single breath method (SB) is 66- to 80-percent predicted. See 38 C.F.R. § 4.97, Diagnostic Code 6600. Furthermore, under diagnostic code 6600, a 30 percent rating is warranted where the evidence demonstrates FEV-1 of 56- to 70-percent predicted; or FEV-1/FVC of 56 to 70 percent; or DLCO (SB) of 56- to 65-percent predicted. A 60 percent rating requires FEV-1 of 40- to 55-percent predicted; or FEV- 1/FVC of 40 to 55 percent; or DLCO (SB) of 40- to 55-percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating requires FEV-1 less than 40 percent predicted; or FEV- 1/FVC less than 40 percent; or DLCO (SB) of less than 40- percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiorespiratory limitation); or cor pulmonale (right-sided heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by echo or cardiac catheterization); or an episode or episodes of acute respiratory failure; or oxygen therapy. Id. VA amended the rating schedule concerning respiratory conditions, effective October 6, 2006. See 71 Fed. Reg. 52,457-52,460 (Sept. 6, 2006). VA added provisions that clarify the use of PFTs in evaluating respiratory conditions. A new paragraph entitled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845" was added to 38 C.F.R. § 4.96. See 38 C.F.R. § 4.96(d) (2007). In particular, the paragraph notes that if a DLCO (SB) test is not of record, evaluation should be based on alternative criteria as long as the examiner states why the DLCO (SB) test would not be useful or valid in a particular case. Also, if a maximum exercise capacity test is not of record, the adjudicator should evaluate the veteran's disability based on alternative criteria. Also if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned. The Board notes that the effective date of the above amendment to 38 C.F.R. § 4.96 is October 6, 2006. Furthermore, the provisions of the amendment are noted to be applicable to all applications for benefits received by VA on or after the effective date of the amendment, October 6, 2006. As the veteran's claim for a compensable rating for bronchitis was filed in August 1999, consideration of the amended version of 38 C.F.R. § 4.96 is not warranted. The Board will thus consider the version of 38 C.F.R. § 4.96 in effect prior to the amendment. A review of the record reflects that the veteran underwent a PFT in March 2001 and in March 2005, neither of which reported a finding for DLCO (SB) or maximum oxygen consumption. Otherwise, FEV-1 predicted values reported in both PFTs did not warrant a compensable rating. With regard to the March 2001 PFT, the FEV-1/FVC ratio percentage, pre- bronchodilator stimulation, was reported as 36 percent. However, the examiner noted that any test findings pre- bronchodilator stimulation were unreliable due to the poor effort of the veteran during testing. Post-bronchodilator stimulation resulted in an FEV-1/FVC ratio percentage of 81. On the March 2005 PFT report, FEV-1/FVC ratio percentage, pre-bronchodilator stimulation, was reported as 87. The test finding post-bronchodilator stimulation was 80 percent. In a report of September 2006 VA examination, the examiner noted that there was no evidence of cor pulmonale, right ventricular hypertrophy or pulmonary hypertension, nor had the veteran ever used oxygen therapy. Furthermore, the examiner noted that a review of the veteran's September 2006 PFT revealed pre- and post-bronchodilator findings for FEV-1 of 2.29 (87 percent predicted) and 2.65 (100 percent predicted), respectively. Additionally, pre- and post- bronchodilator findings for FVC were noted as 3.44 (99 percent of normal) and 3.35 (96 percent of normal), respectively. While an FEV-1/FVC ratio percentage was not noted by the examiner, based on the Board's calculation of post-bronchodilator findings, the ratio percentage (2.65/3.35) was 79. Otherwise, the examiner in September 2006 noted that the PFT findings were consistent with mild obstructive ventilatory defect that were normalized with bronchodilator stimulation. At the same time, the examiner reported that the pre-bronchodilator results were within the range of normal limits, as were diffusion studies. The Board notes that post-bronchodilator findings, prior to the above amendment to 38 C.F.R. § 4.96, are the standard in pulmonary assessment. See 61 Fed. Reg. 46,720, 46,723 (Sept. 5, 1996) (The results of testing following optimum therapy reflect the best possible functioning of an individual and are the figures used as the standard basis of comparison of pulmonary function.). In this case, the Board finds that the findings of 80 in March 2005 and 79 in September 2006 PFTs for FEV-1/FVC ratio percentage warrants a 10 percent rating under 38 C.F.R. § 4.97, Diagnostic Code 6600. Otherwise, the Board does not find a higher rating is warranted in this case. Here, the evidence has not demonstrated an FEV-1 lower than 100 percent predicted post-bronchodilator stimulation nor does clinical evidence demonstrate the veteran as having or having had cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, respiratory failure, or the need for oxygen therapy. The Board is aware that the examiner in September 2006 did not undertake a maximum oxygen consumption test and while she did report diffusion studies to be normal she did not otherwise provide the actual DLCO (SB) predicted value. However, as noted above, the veteran failed to report for her scheduled November 2007 reexamination without good cause. This reexamination may have provided medical findings associated with maximum oxygen consumption and/or DLCO (SB) that may have warranted a higher rating. The Board has considered the Court's holding in Hart, supra. In this case, the veteran filed her claim for a higher rating in August 1999. At no time during the period the veteran's claim for increase has been pending has the Board found the veteran's bronchitis to have undergone varying and distinct levels of severity. As noted above, the reported findings from the PFTs during this period warrant no more than a 10 percent rating. Otherwise, a report of March 2001 VA examination reported a diagnosis of mild bronchitis. Furthermore, a report of March 2004 VA examination reflects the examiner's finding of mild bronchitis secondary to smoking and gastroesophageal reflux disease (GERD). The examiner opined that the bronchitis was annoying and non- disabling. In a report of March 2005 VA examination, the veteran reported that she averaged four episodes of bronchitis a year usually relieved with antibiotics and decongestants. She also reported that she did not use inhalers. The examiner's diagnosis was recurrent bronchitis. Thus, the Board finds that clinical findings reported during the appeal period, reflecting mild disability, support a rating no higher than 10 percent. The above determination is based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the veteran's bronchitis is so exceptional or unusual as to warrant the assignment of a rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2007). Here, notwithstanding the veteran's contentions that her bronchitis causes her to miss work, the Board simply does not find evidence of marked interference with employment or frequent periods of hospitalization, or evidence that the veteran's bronchitis renders impractical the application of the regular schedular standards. Therefore, the criteria for invoking the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Consequently, for all the foregoing reasons, the Board finds that a rating to 10 percent, and no higher, for bronchitis is warranted. 38 C.F.R. §§ 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6600. ORDER A 10 percent rating for bronchitis is granted, subject to the laws and regulations governing the payment of monetary benefits. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs