Citation Nr: 1034591 Decision Date: 09/14/10 Archive Date: 09/21/10 DOCKET NO. 06-30 550 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to a disability rating in excess of 30 percent for bronchial asthma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty for more than twenty years from December 1954 to December 1974. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a March 2005 decision of the RO that denied a disability rating in excess of 30 percent for service- connected bronchial asthma. The Veteran timely appealed. In July 2009, the Board remanded the matter for additional development. VA substantially complied with the previous remand directives. The U. S. Court of Appeals for Veterans Claims (Court) has recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Because the Veteran has not submitted evidence of unemployability, the Board finds it unnecessary to remand that matter for further action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to October 28, 2009, the Veteran's bronchial asthma has required the use of daily inhalational or oral bronchodilator therapy; a pulmonary function test (post-bronchodilator) revealed a FEV-1 of 86 percent predicted, and a FEV-1/FVC of 72 percent. An FEV-1 of 40 to 55 percent predicted, or; a 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, have not been objectively demonstrated. 2. For the period from October 28, 2009, the Veteran's bronchial asthma has required the use of daily inhalational or oral bronchodilator therapy; a pulmonary function test (post- bronchodilator) revealed a FEV-1 of 54 percent predicted, and a FEV-1/FVC of 53 percent. An FEV-1 of less than 40 percent predicted, or; a FEV-1/ FVC of less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; required daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications, have not been objectively demonstrated. CONCLUSIONS OF LAW 1. Prior to October 28, 2009, the criteria for a disability rating in excess of 30 percent for bronchial asthma have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.97, Diagnostic Code 6602 (2009). 2. The criteria for a 60 percent disability evaluation for bronchial asthma, for the period from October 28, 2009, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.97, Diagnostic Code 6602 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). A recent decision by the United States Court of Appeals for the Federal Circuit has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific Veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Through a March 2009 letter, VA's Appeals Management Center (AMC) notified the Veteran of elements of an increased rating claim and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim. VA's letter notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the March 2009 letter, the AMC specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claim on appeal, reports of which are of record. Upon further review of the record, it appears that VA records pertaining to the Veteran's primary care physician that described additional medications for treatment of the Veteran's bronchial asthma were already of record at the time of the Board's July 2009 remand. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2009). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2009). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. 4.1. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Service connection has been established for bronchial asthma, effective January 1975. A 30 percent disability rating for bronchial asthma under 38 C.F.R. § 4.97, Diagnostic Code 6602, has been in effect for more than twenty years and is a protected rating. 38 C.F.R. § 3.951(b) (2009). Under Diagnostic Code 6602, a 30 percent rating is warranted for bronchial asthma if the following findings are demonstrated: a forced expiratory volume in one second (FEV-1) of 56 to 70 percent predicted, or; a force expiratory volume in one second to forced vital capacity ratio (FEV-1/forced ventilatory capacity (FVC)) of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted for bronchial asthma if the following findings are demonstrated: an FEV-1 of 40 to 55 percent predicted, or; a 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. The maximum 100 percent rating is warranted if the following findings are demonstrated: an FEV-1 of less than 40 percent of predicted value, or; a FEV-1/FVC of 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. 38 C.F.R. § 4.97, Diagnostic Code 6602. The term "parenteral" in the rating criteria is generally defined as: By some other means than through the gastrointestinal tract; referring particularly to the introduction of substances into an organism by intravenous, subcutaneous, intramuscular, or intramedullary injection. STEDMAN'S MEDICAL DICTIONARY, 27th Edition, 1316 (2000). In December 2004, the Veteran contended that his bronchial asthma had worsened, and that he now required two types of inhalers at least twice daily. VA treatment records, dated in December 2004, reflect that the Veteran's medications were being monitored closely because of the addition of a beta-blocker; his treating physician noted that the Veteran might benefit from a steroid inhaler. Records show that a steroid metered-dose inhaler was added in January 2005. Pulmonary function testing in January 2005 revealed overall moderate ventilator impairment, based on the finding of a moderate reduction in the FEV-1. The Veteran had last taken inhalers yesterday evening. After inhaled bronchodilator, overall ventilator function was normal. During a March 2005 VA examination, the Veteran reported that his asthma had its onset in Korea in 1957; that more recently he had episodes of wheezing; and last year he started having some cold- air sensitivity, and getting some chest discomfort with breathing when exposed to cool air. He reported that a steroid inhaler (AeroBid) was added to his medication regimen, and that he also was on Formoterol (inhaler). The Veteran reportedly used both of these inhalers twice a day on a regular basis, and then used an Albuterol (inhaler) as needed. He reported using Albuterol up to four times on a bad day, and averaged more like two times a day. On examination, the Veteran had a regular rate and rhythm; lungs were clear with somewhat poor excursion. Pulmonary function testing in January 2005 (post-bronchodilator) revealed a FEV-1 of 86 percent predicted, and a FEV-1/FVC of 72 percent; mild obstructive disease was noted. Supplemental oxygen was not needed. In March 2005, the Veteran reported that the use of AeroBid (steroid inhaler) helped ease the condition he experienced last fall of pain or aching in his chest and lungs when breathing cold or cool air. The Veteran reported his overall usage of inhalers was from 6 to 12 times daily. In September 2006, the Veteran reported that, even with the adjustment of his medication, he continued to experience occasional discomfort, including periods of shortness of breath and tightness in his chest. He reportedly had not sought treatment each time these events occurred, and his many periods of discomfort were not documented. The Veteran underwent a VA examination on October 28, 2009. He reported having increased problems with symptoms over the last several years, despite ongoing multiple inhaler management. In reviewing the Veteran's medical history, the examiner noted that the Veteran's last pulmonary consultation was in August 2006. At that time the Veteran was on Formoterol inhaler, as well as inhaled Flunisolide (steroid) and also Albuterol as a rescue inhaler. It was recommended that the Veteran be changed to a Mometasone inhaler, rather than the Flunisolide; however, the Veteran felt worse on this and resumed his Flunisolide. The addition of Montelukast had been considered, if the Veteran was not able to decrease his Albuterol usage. The VA examiner noted that the Veteran continued to use his Albuterol as a rescue inhaler, often seven to eight times daily. The Veteran reported using his Albuterol inhaler as a premedication for lying down in bed at night; he had chronic two- pillow orthopnea related to his asthma. The Veteran also reported that his chest symptoms, consisting of an achy tightness, would worsen if he tried to rush when walking. The Veteran occasionally noticed achiness at rest. He was able to exercise on a slow treadmill for approximately five to ten minutes. The examiner also noted that the Veteran had a chronic nonproductive cough; he denied hemoptysis. The Veteran reportedly avoided going to the emergency room, even when experiencing chest tightness, because he would rather not take oral Prednisone; he used his Albuterol rescue inhaler as needed, and did not require supplemental oxygen. The examiner noted that the Veteran had not been hospitalized for his asthma since December 2004. He had no anorexia, and his weight remained stable. The Veteran reported that cold or damp weather exacerbated his symptoms. The Veteran's current pulmonary medications included Formoterol (inhaler), one capsule twice a day; Flunisolide (inhaler), 4 puffs twice a day; and Albuterol (inhaler), one puff as needed (at a current rate of seven to eight a day). On examination, the Veteran's lungs showed only moderate air movement with scattered both inspiratory and expiratory wheezing. A forced expiration maneuver provoked prolonged wheezing and coughing. Pulmonary function testing in October 2009 (post- bronchodilator) revealed an FEV-1 of 1.56, which was 54 percent of predicted; and a FEV-1/FVC of 53 percent. These findings were interpreted as evidence of a moderate obstructive lung defect. Supplemental oxygen was not needed. The assessment was ongoing symptoms of chronic persistent asthma, despite use of inhaled steroids and long-acting beta agonist with the Veteran requiring frequent use of rescue inhaler. The examiner commented that, despite the fact that the Veteran had not required emergency room visits or hospitalization for his asthma, he had increasing functional limitation due to his asthma and demonstrable wheezing on examination at rest. Post-bronchodilator studies are required when pulmonary function testing is done for disability evaluation purposes. 38 C.F.R. § 4.96(d). In this case VA received the Veteran's claim for an increased disability rating in December 2004. Here, prior to the October 28, 2009 VA examination, the evidence of record supports no more that the currently assigned 30 percent disability rating for the applicable period under Diagnostic Code 6602, based on the Veteran's pulmonary function testing in January 2005. There was no evidence of intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids, or at least monthly visits to a physician for required care of exacerbations. Nor did the evidence demonstrate FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent. See 38 C.F.R. § 4.97, Diagnostic Code 6602 (2009). While the Veteran exhibited a moderate reduction in the FEV-1 during the applicable period and was prescribed a steroid inhaler, there is no evidence of intermittent or daily usage of oral or parenteral corticosteroid. The March 2005 examiner described the Veteran's bronchial asthma as mild obstructive disease. The objective evidence did not reflect a degree of functional impairment warranting an increased disability rating. 38 C.F.R. §§ 4.7, 4.21. There was no showing of supplemental oxygen required, or episodes of respiratory failure. Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As of the October 28, 2009 VA examination, the Board finds that the objective evidence meets the criteria for a 60 percent disability rating under the rating criteria. See 38 C.F.R. § 4.97, Diagnostic Code 6602 (2009). On pulmonary function testing in October 2009, the Veteran exhibited an FEV-1 of 1.56, which was 54 percent of predicted; and a FEV-1/FVC of 53 percent. The Veteran also reported chest symptoms, consisting of an achy tightness, but that he avoided going to the emergency room. The October 2009 examiner commented that the Veteran had increasing functional limitation due to his asthma, and demonstrable wheezing on examination at rest. The evidence does not reflect that the Veteran's bronchial asthma meets or approximates the criteria for a disability rating in excess of 60 percent for the applicable period. There is no showing of episodes of respiratory failure, or daily use of systemic high dose corticosteroids or immune-suppressive medications. Moreover, there is no showing that the Veteran's service- connected bronchial asthma has resulted in so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's bronchial asthma is not so unusual or exceptional in nature as to render his schedular rating inadequate. As demonstrated above, the Veteran's disability has been evaluated under the applicable diagnostic code that has specifically contemplated the level of occupational impairment caused by his disability. Before October 28, 2009, the Veteran's functional impairment more nearly approximately the criteria for a 30 percent evaluation and no higher, but after October 28, 2009, his functional impairment increased. A 60 percent evaluation for that time period has been assigned. However, the criteria for the assignment of a rating in excess of 60 percent rating have not been met. The Board also notes that the Veteran's disability has not been shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned ratings), to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. The Veteran has not reported any lost time from work, or other economic impact from the disability. There is no evidence of recent hospitalizations for bronchial asthma. In the absence of evidence of any of the factors outlined above, the criteria for referral for consideration of an extraschedular rating have not been met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased disability evaluation for the Veteran's bronchial asthma for the period prior to October 28, 2009, is denied. A 60 percent disability rating for the Veteran's bronchial asthma, for the period from October 28, 2009, is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs