Citation Nr: 1016965 Decision Date: 05/06/10 Archive Date: 05/19/10 DOCKET NO. 05-36 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an evaluation in excess of 30 percent for bronchial asthma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to January1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2008, the Board remanded the claim to the RO via the Appeals Management Center (AMC). The action directed in the remand has been completed and the case has been returned to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's bronchial asthma is currently manifested by not more than symptomatology requiring daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication; there are no findings of either FEV-1 or FEV- 1/FVC of 55 percent predicted or less and there is an absence of monthly visits to a physician for required care of exacerbations or intermittent (at least three times per year) courses of systemic (oral or parenteral) corticosteroids. CONCLUSION OF LAW The criteria for a disability rating higher than 30 percent for bronchial asthma are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6602 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks an increased rating for bronchial asthma. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. In the case at hand, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA, by letter mailed in March 2006. Although this letter was mailed after the initial adjudication of the claim, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the Veteran's claim in September 2009. There is no indication in the record or reason to believe that the ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). Consistent with the duty to assist, the Veteran has been afforded a VA respiratory examinations and service treatment records and pertinent VA medical records have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and non prejudicial to the veteran. Accordingly, the Board will address the merits of the claim. II. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2009). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2009). Where there is a question as to which of two evaluations shall 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 evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2009). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2009) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Service connection for asthma was granted in a September 1948 rating decision. A 30 percent rating has been in effect since 1945. The Veteran filed the current claim for an increased rating for asthma in March 2005. The Veteran's asthma has been assigned a 30 percent disability rating under 38 C.F.R. § 4.97, Diagnostic Code 6602. The Veteran essentially contends that the symptomatology associated with the disability is more severe than is reflected in the currently assigned rating. Under Diagnostic Code 6602, a 10 percent rating is for assignment where pulmonary function testing shows FEV-1 of 71-to 80-percent predicted; FEV-1/FVC of 71 to 80 percent; or the requirement for intermittent inhalational or oral bronchodilator therapy. A 30 percent rating requires FEV-1 of 56-to 70-percent predicted; FEV-1/FVC of 56 to 70 percent; the requirement of daily inhalational or oral bronchodilator therapy; or the requirement of inhalational anti-inflammatory medication. A 60 percent rating is warranted under Diagnostic Code 6602, if FEV-1 is 40-to 55-percent predicted; FEV-1/FVC is 40 to 55 percent; at least monthly visits to a physician are required for exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. With respect to pulmonary function testing, the record contains reports of VA examinations during the period on appeal conducted in June 2005, May 2006 and September 2009. None of these examination reports nor any other evidence reflects findings which would warrant a rating in excess of 30 percent for asthma. Specifically, in June 2005 the Veteran reported with shortness of breath on minimal exertion. He reported acute attacks several times per year, with one or two clinical visits per year for exacerbations. Medications included intermittent inhaled bronchodilators, daily inhaled anti-inflammatory medication and Theophylline twice daily. He described daily non-productive cough, no hemoptysis, weekly wheezing, occasional dyspnea at rest and with mild exertion, and frequent dyspnea with moderate to severe exertion. There was no anorexia, fever, chest pain, respiratory failure, or period of incapacitation. There was occasional leg swelling. On examination, there was peripheral edema, dyspnea on mild exertion and slightly limited chest expansion and diaphragm excursion. The examiner assessed moderate impairment between asthma attacks. Pulmonary function testing (PFT) included Pred FVC 4.30 , Best 3.24, Pred FEV-1 3.34, Best 2.17, FEV1/FVC 67%. After prescription, FVC Best 3.30, 77% Pred; FEV-1 Best 2.31, 69% Pred, FEV1/FVC 70%, Pred 77%, Act 76%: After bronchodilator: FVC Best 3.30, % Pred 77, FEV1 Best 2.31, % Pred 69, FEV1/FVC % 70%. The diagnosis was bronchial asthma: mild obstructive ventilatory defect. This disability was assessed as having a severe affect on exercise and chores, preventing sports, and causing mild to moderate limitation on other daily activities. The May 2006 VA examination report reflects that the Veteran reported significant dyspnea on exertion. He reported significant difficulty walking one flight of stairs as well as waking at night with shortness of breath. Treatment included Flonase, theophylline, Singulair, albuterol inhaler, and Aerobid inhaler daily. Prednisone was reportedly used about twice per year. He reported no oxygen use or periods of incapacitation. Chest X-rays showed kyphosis, degenerative change of the spine and some mild hyper expansion. Pulmonary function testing (PFT) included FEV1 of 1.98 liters which was 57% of predicted. Pre-bronchodilators at 2.08 liters which was 60% of predicted. Post bronchodilators FVC was 2.74, which was 61% predicted. Pre-bronchodilators at 2.676 liters which was 60% of predicted post bronchodilator. The diagnosis was moderate obstructive ventilatory defect. The Veteran was afforded an additional VA examination in September 2009. He reported severe dyspnea on exertion, a dry cough, no fever, night sweats, weight gain or loss or daytime hyper somnolence. Current treatment was with budesonide, formoterol, theophylline and albuterol with only mild improvement. He denied incapacitating episodes but felt he had daily constant attacks over the past year. He was not working and believed his occupation and daily activities were significantly affected by his asthma. Examination revealed significantly decreased breath sounds and air movement with no frank wheezing. His heart was regular with no definite evidence for pulmonary hypertension, right ventricular hypertrophy, cor pulmonale, congestive heart failure, residual pulmonary embolism, respiratory failure or chronic pulmonary thrombo embolism. PFT's showed pre-bronchodilator FVC of 59.2% predicted, FEV1 of 62% of predicted, and a ration of 77%. Post-bronchodilator FVC was 60% of predicted, FEV1 was 67.2% predicted and a ration of 82%. This was interpreted as a restrictive ventilatory defect. The diagnosis was bronchial asthma, chronic. Clearly, as the relevant PFT values were not 55% or less, they do not show a basis for a rating in excess of 30 percent. Given the absence of PFT results which meet the criteria for an increased rating, the Board must turn to other criteria under the rating schedule to determine if a higher rating is warranted. A review of the medical records which date through August 2009, shows that although the Veteran has been a regular visitor to VA treatment clinics, he has not had monthly visits to a physician for asthma symptoms. With respect to corticosteroids, the VA treatment records show that the Veteran has been prescribed multiple medications. Thus, there is daily inhalational bronchodilator therapy but there is no evidence that the Veteran has been taking corticosteroids at the frequency required for a 60 percent rating. He reported taking prednisone about twice per year. Based on such findings, the Board concludes that the criteria for a 60 percent rating are not met or approximated under the current regulations. Although the Board has carefully considered the Veteran's contentions regarding the extent of his asthma, for the reasons stated above, the Board finds that an increased rating is not in order. Consideration has been given to assigning staged ratings; however, at no time during the period in question has the disability warranted a rating higher than that assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In this regard, the Board notes the relative similarity of the complaints and findings on the three VA examinations, as well as the medical opinion in a July 2009 pulmonary clinic visit report indicating that his most recent pulmonary function testing in 2009 was essentially unchanged from results in 2004. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a) (2009). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the record reflects that the Veteran has not required frequent hospitalizations for his disability and that the manifestations of the disability are consistent with those contemplated by the schedular criteria. The Board concludes that referral of this case for extra-schedular consideration is not in order. ORDER Entitlement to an evaluation in excess of 30 percent for bronchial asthma is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs