Citation Nr: 1104699 Decision Date: 02/04/11 Archive Date: 02/14/11 DOCKET NO. 05-11 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for exercise-induced asthma, for the period from November 1, 2004 to March 11, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from November 1984 to November 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. That rating decision, in part, granted service connection for exercise-induced asthma, and assigned a 10 percent rating, effective November 2004. A July 2008 rating decision granted an increased disability rating of 30 percent for the Veteran's exercise-induced asthma, effective from March 2008. The case was previously before the Board in October 2009, when it was remanded for medical review and recalculation of the pulmonary function test (PFT) results of record. FINDINGS OF FACT 1. For the period of time from November 1, 2004 to March 11, 2008, the medical evidence reveals that the Veteran's service- connected exercise-induced asthma was manifested by FEV-1 of 74 percent predicted and FEV-1/FVC of 63.7 percent. 2. For the period of time from November 1, 2004 to March 11, 2008, the Veteran's service-connected exercise-induced asthma was not manifested by: an FEV-1 of 55 percent predicted or less; an FEV-1/FVC of 55 percent or less; 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; or a requirement for any medication to treat his disability. CONCLUSION OF LAW The criteria for a 30 percent evaluation, but no higher, for exercise-induced asthma are met effective November 1, 2004. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 20109; 38 C.F.R. §§ 4.7, 4.96, 4.97, Diagnostic Code 6602 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Pre-adjudication notice was provided to the Veteran in a letter dated August 2004 with respect to his claim for service connection for asthma. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. VA has obtained service treatment records, VA treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and afforded the Veteran the opportunity to present statements and evidence. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The Veteran seeks entitlement to an initial disability rating in excess of 10 percent for exercise-induced asthma, for the period from November 1, 2004 to March 11, 2008. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations should 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 rating schedule also provides that when an unlisted disability is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2002); Peyton v. Derwinski, 1 Vet. App. 282 (1991). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Service connection has been granted for exercise-induced asthma. This disability is rated at a 10 percent disability rating for the period from November 1, 2004 to March 11, 2008 and at a 30 percent disability rating thereafter. In June 2005 written statement in lieu of a VA Form 646, the Veteran's representative asserted that the pulmonary function test (PFT) percentages in the September 2004 examination report had been incorrectly calculated, and that correct calculation would reveal that the Veteran met the criteria for an increased disability rating for the period of time in question. In June 2007, the Board remanded the claim for examination of the Veteran and recalculation of the 2004 PFT results. In a November 2008 report, a VA physician recalculated some of the prior PFT results, but did not indicate a recalculated FEV-1 in a percentage form. The Board remanded the case to obtain this calculation; a February 2010 response from a VA physician indicated that recalculation was not possible. The medical evidence reveals that the Veteran was diagnosed with exercise-induced asthma during active service. In September 2004, a VA examination of the Veteran was conducted. The Veteran reported subjective complaints of shortness of breath, especially with exercise. There was no indication that any medication was prescribed to treat the asthma. PFT testing was conducted at this time; the results were: Forced Expiratory Volume (FEV-1) of 74 percent predicted. The ration of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) was indicated as a numerical result without a percentage given. The results for Diffusion Capacity of the Lung (DLCO) were not indicated. VA outpatient treatment records have been obtained. There is no evidence showing that the Veteran has sought medical treatment for his symptoms of asthma or that he is prescribed any medication to treat asthma. In November 2008, a VA physician reviewed the medical evidence of record, including the September 2004 VA PFT results. The physician specifically indicated that the FEV-1/FVC ratio should have been correctly calculated as being 63.7 percent predicted. The physician also indicated that this was consistent with prior PFT results contained in the service treatment records and dated in 2008, the prior year. The physician note that the service treatment record PFTs dated in 2008 revealed FEV-1/FVC ratios of between 58 and 68 percent predicted. The Veteran's service-connected exercise-induced asthma is rated under Diagnostic Code 6602, which contemplates bronchial asthma. A 30 percent disability rating is warranted where PFTs show any of the following: FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent; or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. A 60 percent disability rating contemplates PFTs that show any of the following: FEV-1 of 40 to 55 percent predicted, 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. A 100 percent disability rating is warranted where PFTs show any of the following: FEV-1 less than 40 percent predicted, FEV-/FVC less than 40 percent; or more than one attack per week with episodes of respiratory failure, or where the use of systemic high dose corticosteroids or immuno-suppressive medications are required on a daily basis. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2010). The evidence supports the assignment of a disability rating of 30 percent for exercise-induced asthma, for the period from November 1, 2004 to March 11, 2008. The September 2004 VA PFT results, as properly calculated by a VA physician in November 2008, reveal that the Veteran's FEV-1/FVC is 63.7 percent predicted. This meets the criteria for the assignment of a 30 percent disability rating. Also, the properly calculated September 2004 PFT results are entirely consistent with the PFTs contained in the service treatment records, dated within the year prior to 2004, as well as the VA PFT results dated after. Essentially all properly calculated PFT results of record indicate that the Veteran's service-connected asthma has been consistently at the disability level to warrant the assignment of a 30 percent disability rating from the dated of service connection on November 1, 2004 to the present. The evidence is against the assignment of a disability rating in excess of 30 percent for the Veteran's service-connected exercise-induced asthma. There is no evidence that the Veteran has ever had a FEV-1 of 55 percent predicted or less, an FEV- 1/FVC of 55 percent or less, that he requires at least monthly visits to a physician for required care of exacerbations, intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids, or that he requires any medication to treat his disability. Accordingly, the preponderance of the evidence is against the assignment of a disability rating in excess of 30 percent for the Veteran's service-connected exercise-induced asthma; there is no doubt to be resolved and a disability rating in excess of 30 percent is not warranted. 38 U.S.C.A. § 5107(b), 38 C.F.R. Part 4, §4.97, Diagnostic Code 6602 Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service. An extra-schedular evaluation is warranted where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular evaluations are adequate as the diagnostic criteria adequately address the severity and symptomatology of the Veteran's service-connected exercise-induced asthma. Higher schedular evaluations under the assigned diagnostic code are available upon a showing of additional symptomatology. The evidence does not show any periods of hospitalization for treatment and there is no evidence that these disabilities result in any interference with employment. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Last, a claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered. None of the VA examinations of record indicate that the Veteran is unemployable due to his service-connected disabilities. Accordingly, consideration of TDIU pursuant to Rice is not warranted. ORDER An initial disability rating of 30 percent, and no more, is granted for exercise-induced asthma, for the period from November 1, 2004 to March 11, 2008, subject to the law and regulations governing the payment of monetary awards. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs