Citation Nr: 1314680	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  12-25 580	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to an increased rating for asthma, currently evaluated at 30 percent disabling. 

2.  Entitlement to a total disability rating based on individual employability due to a service-connected disability (TDIU).  


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel



INTRODUCTION

The Veteran had active service from November 1983 to November 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  

A review of the Virtual VA paperless claims processing system revealed no records which are pertinent to the present appeal.  


FINDINGS OF FACT

1. The preponderance of the evidence is against a finding that the Veteran's service-connected asthma manifests either FEV-1 of 40 to 55 percent predicted or FEV-1/FVC of 40 to 55 percent; or that he requires monthly visits to a physician for care of exacerbations; or that he has required intermittent courses of systemic corticosteroids at least three times per year. 

2. The combined service-connected disability rating does not meet the schedular percentage criteria for TDIU.


CONCLUSIONS OF LAW

1. The criteria for an increased evaluation in excess of 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. §§ 3.159, 4.1, 4.3, 4.97, Diagnostic Code 6602 (2012). 

2. The criteria for entitlement to TDIU are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit  (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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. 2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

VA has satisfied its duty to notify by issuing a notice letter in May 2012. This letter advised the Veteran of what evidence was required to substantiate his claims, and of his and VA's respective duties for obtaining evidence. This letter provided notice informing the Veteran that to substantiate his increased evaluation claim, he needed to submit evidence that his service-connected disability had increased in severity.  It also notified him of the requirements to substantiate his TDIU claim. Although this letter was issued after the rating decision on appeal, the issues on appeal were re-adjudicated in the August 2012 Statement of the Case, so all relevant notice has been provided. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 

The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and a report of a VA compensation examination in January 2011.

The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests. 

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). 


Increased Evaluation Claim

Although the Veteran contends that his asthma is more severe than reflected by his current disability rating, the preponderance of the evidence is against the claim and the appeal will be denied. . 

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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. 38 C.F.R. § 4.1. Where an increase in the disability rating is at issue, as is the case here, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed); Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 

The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

The Veteran's service-connected asthma is currently rated under 38 C.F.R. § 4.97, Diagnostic Code 6602. Under Diagnostic Code 6602, a 10 percent evaluation is assigned for a forced expiratory volume in 1 second ("FEV-1") of 71 to 80 percent predicted, or; a ratio of forced expiratory volume in 1 second/forced vital capacity ("FEV-1/FVC") of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent evaluation is assigned for a FEV-1 of 56 to 70 percent predicted, or; a FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent evaluation is assigned for a 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. Finally, a 100 percent evaluation is assigned for a FEV-1 less than 40 percent predicted, or; a FEV-1/FVC 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 immuno-suppressive medications. See 38 C.F.R. § 4.97, Diagnostic Code 6602 (2012). 

The Veteran was afforded a VA compensation examination in January 2011. The Veteran reported that since his last VA examination in 2008 he had not had any inhalation treatments or visits to the emergency room.  He also reported using an inhaler 4-5 times daily.  He also alleged that "about 7-8 times a month he wakes during the night because of shortness of breath."  The Veteran did not report (and the record also does not suggest) that he used oral or parenteral steroids.  A PFT revealed a FEV-1 of 89 percent of the predicted value and a FEV-1/FVC of 83 percent. The VA examiner diagnosed the Veteran with asthma, noted that he was employed full time as a janitor, and stated the asthma had no effect on his usual occupation. 

Based upon the evidence of record, the Board finds that a rating in excess of 30 percent is not warranted. In order to receive a 60 percent rating under Diagnostic Code 6602, the evidence must demonstrate a 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.  Here, the VA examination revealed a FEV-1 of 89 percent of the predicted value and a FEV-1/FVC of 83 percent, well in excess of the 55 percent threshold.  Additionally, the evidence does not show that the Veteran's service-connected asthma has required 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. Thus, the Board finds that a rating of 60 percent or higher is not warranted for the Veteran's service-connected asthma. 

For these reasons, the Board finds that the Veteran's asthma has not been manifested by symptomatology more nearly approximating the criteria for the next-higher 60 percent rating under Diagnostic Code 6602. Because the preponderance of the evidence is against an increased rating in excess of 30 percent for the service-connected asthma, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

The Veteran has not raised, and the evidence does not suggest that referral for an extra-schedular evaluation is warranted. The Veteran's symptoms are addressed by the rating criteria discussed above, and such a referral is appropriate 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. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). 

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the 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. Id. 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. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. 

In this case, the schedular evaluations in this case are not inadequate. Evaluations in excess of those assigned are provided for certain manifestations of the service-connected disabilities at issue, but the medical evidence reflect that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describes the severity and symptomatology of the Veteran's service-connected disabilities. 

TDIU

The Court has held that a request for a total rating based upon individual unemployability (TDIU), whether expressly raised by 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). If the Veteran or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a service-connected disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id.   

The RO inferred from the Veteran's May 2012 Notice of Disagreement that he contends he is unable to secure or follow substantially gainful employment due to his service-connected asthma. He reported that "in September of 2010 [he] had lost [his] job of 17 years at Massena Hospital and had been going through a deep depression."  An August 2011 VA treatment record confirms that the Veteran's employment at the hospital ended, but it notes a different end date - March 2011.  A November 2011 VA treatment record shows he was hired as a full-time custodian at Holston Valley Medical Center.  A February 2012 VA treatment record notes this new job as well.  

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). 

A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id.  

Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet.App. 361 (1993). 

The Board has denied an increased rating for asthma, and the Veteran's rating remains at 30 percent. When combined with his other service-connected disability (a 30 percent rating for depression), his combined rating is 50 percent. Because neither of his service-connected disabilities is rated at 40 percent or more, he does not meet the schedular percentage criteria for TDIU. 38 C.F.R. §§ 4.16(a), 4.25. Therefore, the schedular percentage criteria for TDIU are not met. 38 C.F.R. § 4.16(a).  Additionally, there is no evidence to indicate the Veteran is unemployed, as the aforementioned treatment records show him as employed, as of February 2012.  Thus, TDIU is denied.

ORDER

Entitlement to an increased rating for asthma, currently evaluated at 30 percent disabling, is denied.

Entitlement to TDIU is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs