Citation Nr: 1302103 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-36 424A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating higher than 30 percent for asthma. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 13, 2010. ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from May 1979 to July 1980. This case comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO granted service connection for asthma and assigned a 30 percent rating. The Veteran timely appealed the initial rating assigned. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Symptoms of the Veteran's asthma do not more nearly approximate the pulmonary function test (PFT) scores required for a higher rating under the applicable diagnostic codes, or at least monthly visits to a physician for required care of exacerbations, or intermittent courses of systemic corticosteroids. CONCLUSION OF LAW The criteria for an initial rating higher than 30 percent for asthma have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6602 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. As noted above, the claim for a higher initial rating for asthma arises from the Veteran's disagreement with rating assigned in connection with the grant of service connection for this disability. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA's notification requirements with regard to this claim is unnecessary. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service VA treatment records. The Veteran was also afforded multiple VA examinations as to the severity of her asthma. As shown below, these examinations were adequate because they were based on consideration of the Veteran's prior medical history and also described the asthma in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for a higher initial rating for asthma is thus ready to be considered on the merits. Analysis Disability evaluations are determined by application of the 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. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 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 to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, however, as shown below, the evidence warrants a uniform 30 percent rating. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's asthma is rated under 38 C.F.R. § 4.97, DC 6002. Pursuant to DC 6002, a 30 percent rating is warranted for 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. A 60 percent rating is warranted for 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) course of systemic (oral or parenteral) corticosteroids. A 100 percent disability rating is warranted for an FEV-1 less than 40 percent predicted; or, FEV-1/FVC 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. The preponderance of the evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a 60 percent rating at any time during the appeal period. On the September 2009 VA examination, the Veteran indicated that her current treatment was medication and daily inhalation with a bronchodilator but that she was not taking oral steroids, parenteral steroids antibiotics or other immunosuppressives. She also indicated that there were no side effects from current treatment, treatment response was good with the acute attacks having stopped, but symptoms had recently worsened with change of weather. The frequency of acute attacks was described as several times per year with clinical visits for exacerbations several times per year. Also noted were a history of occasional hemoptysis, wheezing one or several times daily, occasional dyspnea, occasional chest pain at rest and frequent chest pain on exertion, occasional fever and 2 days of incapacitation per month. There was no history of surgery, trauma, neoplasm, pneumothorax, empyema, anorexia, swelling, or respiratory failure. On examination, there were no abnormal respiratory findings, normal diaphragm excursion, normal chest expansion, no chest wall scarring or deformity, no conditions associated with restrictive pulmonary disease, mild impairment between asthma attacks, and no signs of significant weight loss or malnutrition. The PFTs showed FVC of 98 percent predicted, FEV-1 of 84 percent predicted, and FEV-1/FVC of 68 percent. The examiner indicated that there was a mild obstructive ventilatory defect not improved with bronchodilator and gas transfer was moderately impaired. The diagnosis was asthma confirmed via PFT, with significant occupational effect of increased absenteeism. The Veteran stated that with asthma flare-ups she had to be away from work for treatment. There were moderate effects on some daily activities, severe effect on travelling, and the asthma prevented exercise. There was no evidence of cor pulmonale, pulmonary hypertension, or RVH. A VA medication list indicated that the Veteran was taking Albuterol through an oral inhaler every 6 hours as needed and Mometasone Furoate through an inhaler every night. A May 2010 VA primary care assessment indicated that the Veteran had been using Albuterol a lot but was now using it about once or twice per day along with Mometasone at night. On the October 2010 VA examination, the Veteran indicated that the asthma had been getting progressively worse. Current treatment was with medication inhaled through a bronchodilator, with no oral steroids, parenteral steroids, antibiotics, or other immunosuppressives. There were no side effects from current treatment and treatment was fair with some symptoms remaining but improvement. There was no history of non-anginal chest pain, hemoptysis, fever, anorexia, respiratory failure, cor pulmonare, RVH, pulmonary hypertension, chronic pulmonary mycosis, spontaneous pneumothorax, bronchiectasis, pulmonary embolism, or pleurisy with emphysema. There was a positive history of non-productive cough one or several times daily, productive cough, wheezing every day, dyspnea on moderate exertion, night sweats, bronchiectasis, and asthma. It was indicated that there were clinical visits for exacerbations less than weekly but at least monthly. The frequency of acute attacks was 2 per week. No acute pulmonary abnormality was identified on X-ray. PFT showed FVC of 98 percent predicted, FEV-1 of 89 percent predicted, and FEV-1/FVC of 73 percent. It was noted that FEV-1 had increased by 280cc since the September 2009 examination. The diagnosis was asthma, and the examiner noted that the Veteran was on inhalers with improved PFTs since the 2009 examination, but that the Veteran symptomatically felt worse. There was no evidence of cor pulmonare, pulmonary hypertension, or RVH. The effect on occupation was lack of stamina, weakness, and fatigue, and it was noted that the Veteran had quit her job as a mail handler in January of 2010 because her asthma had been flaring up more frequently. It was also noted that the Veteran was unemployed for less than a year due to disability rather than retirement. The effects on daily activities were that the Veteran was having trouble getting household chores done and felt tired and worn out due to shortness of breath as a result of her asthma. The above evidence reflects that the symptoms of the Veteran's asthma do not more nearly approximate the criteria for a 60 percent rating. Her PFT scores did not more nearly approximate FEV-1 of 40 to 55 percent predicted or FEV-1/FVC of 40 to 55 percent. Rather, the scores were much higher and more nearly approximated the scores as well as the daily inhalational or oral bronchodilator therapy for which her current 30 percent rating is warranted. Nor did she use systemic corticosteroids, immunosuppressive medications, or have episodes of respiratory failure, the symptoms listed in the criteria for higher 60 and 100 percent ratings. The only basis on which a schedular rating higher than 30 percent for asthma could be based under DC 6602 would be monthly visits to a physician for required care of exacerbations. The Veteran indicated on the October 2010 VA examination that there were clinical visits for exacerbations less than weekly but at least monthly. The Veteran is competent to report visits to a physician. Cf. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). The Board finds, however, that the Veteran's statements are contradicted by the evidence of record. Specifically, the Virtual VA records include VA treatment records from May 2010 to November 2011. These records include only a single visit to a physician for care of an asthma exacerbation, in March 2011. In that emergency room treatment note, the Veteran was noted to have had acute shortness of breath monthly night time awakenings that had increased to two nights that week, that she was using a Albuterol inhaler weekly, had a dry cough and no sputum and was stabilized after two nebs with Albuterol and Atrovent. The Veteran improved and was discharged. The lack of contemporaneous records of monthly treatment for exacerbations cannot render the Veteran's statement incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the notation of the single visit to the emergency room during the six month period with treatment records for other disorders but not asthma exacerbations during that period provides a sufficient basis for the Board to conclude that the weight of the evidence reflects that the Veteran's symptoms did not more nearly approximate the monthly visits to a physician for required care of exacerbations required for a 60 percent rating. See Buczynski v. Shinseki, 24 Vet. App. 221 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded). See also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons."). To this extent, the Veteran's statements are not credible. The Veteran is also not entitled to an initial rating higher than 30 percent under any other potentially applicable diagnostic code. Although she indicated that she had symptoms such as a productive cough and bronchiectasis, she did not meet the other criteria for ratings higher than 30 percent under DCs 6601, 6603, and 6604, applicable to diseases of the trachea and bronchi. Specifically, she did not have symptoms that more nearly approximated incapacitating episodes 4-6 weeks per year, or near constant findings of cough with purulent sputum associated with anorexia, weight loss, and frank hemoptysis and requiring antibiotic usage almost continuously required for a 60 percent rating under DC 6601 (there was a reference to occasional hemoptysis in the September 2009 VA examination report, but the October 2010 VA examination report indicated that there was no history of hemoptysis). She also did not have PFT scores more nearly approximating those required for ratings higher than 30 percent under DCs 6603 or 6604, or other symptomatology required for higher ratings under those diagnostic codes. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's asthma, including symptoms such as cough and hemoptysis not listed in DC 6002, are fully contemplated by the applicable rating criteria including those in the other potentially applicable diagnostic codes for rating diseases of the trachea and bronchi that the Board has considered. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required, and referral for consideration of an extraschedular rating for asthma is not warranted. 38 C.F.R. § 3.321(b)(1). The Board notes that it is remanding a claim for a TDIU below. The Court has held that the Board can decide a claim for an increased rating, including on an extraschedular basis, while remanding a claim for a TDIU in some circumstances. Holland v. Brown, 6 Vet. App. 443, 447 (1994) (holding that "it was not inappropriate" for the Board to refer a TDIU claim to the RO for further adjudication and still decide an increased rating claim). As the Board has found that the criteria adequately contemplate the Veteran's symptoms and was not required to consider whether there was marked interference with employment, deciding the extraschedular claim while remanding the TDIU claim is appropriate in this case. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's asthma symptoms have not more nearly approximated the criteria for a 60 percent rating at any time during the appeal period. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for an initial schedular rating higher than 30 percent for asthma must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to an initial rating higher than 30 percent for asthma is denied. REMAND A claim for a TDIU is deemed to have been submitted as part of any claim for a higher initial rating or an increased rating when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the highest rating possible. Rice v. Shinseki, 22 Vet. App. 447 (2009). As noted above, the October 2010 VA examination report indicated that the Veteran had to leave her job due to her asthma. A TDIU must therefore be deemed to have been submitted as part of the claim for a higher initial rating for asthma. The Court has indicated that such claims must be remanded, rather than referred, to the agency of original jurisdiction. See Young (William) v. Shinseki, 25 Vet. App. 201, 204 (2012) ("when a claim (or a part or theory in support of a claim) erroneously is referred instead of remanded, a claimant loses his statutory right to expedited consideration absent Court correction"). See also Turner v. Shinseki, No. 11-0810, 2012 WL 2512892 (Davis, J., mem. dec., June 29, 2012) (applying Young to reverse the Board's finding that it did not have jurisdiction over the Veteran's TDIU claim, and instructing the Board to remand, rather than refer, the TDIU claim to the RO). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). The Board is aware that the Veteran was granted a 100 percent rating for her PTSD and that rating is effective September 13, 2010. The award of a 100 percent schedular disability rating effectively moots a claim for entitlement to a TDIU from the effective date of the 100 percent rating. Locklear v. Shinseki, 24 Vet. App. 311, 314, n. 2 (2011) (citing Herlehy v. Principi, 15 Vet.App. 33, 35 (2001)). Given that the October 2010 VA examination report indicated that the Veteran was unemployed due, at least in part, to her service connected disability from January 2010, a claim for a TDIU prior to September 13, 2010 is for consideration and must be remanded. Accordingly, the issue of entitlement to a TDIU prior to September 13, 2010 is REMANDED for the following action: After conducting all appropriate development, adjudicate the issue of entitlement to a TDIU prior to September 13, 2010. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. If all procedures are not completed, the appeal should be closed. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs