Citation Nr: 1318662 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 05-20 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an extraschedular disability evaluation for bronchitis with asthmatic attacks. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. In a September 2011 decision, the Board determined that the Veteran was not entitled to a disability rating in excess of 30 percent for her bronchitis with asthmatic attacks under the applicable provisions of VA's rating schedule. See 38 C.F.R. § 4.97, Diagnostic Code 6602. However, the Board determined that the manifestations of the Veteran's bronchitis with asthmatic attacks may present an exceptional or unusual disability picture as to warrant consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). Accordingly, the specific issue of a disability rating in excess of 30 percent for bronchitis with asthmatic attacks under 38 C.F.R. § 4.97, Diagnostic Code 6602, is no longer on appeal and the Board need only address the extraschedular question in this instance. FINDINGS OF FACT The competent and credible evidence of record, including a June 2012 opinion by the Director of VA's Compensation and Pension Service, indicates that the Veteran's bronchitis with asthmatic attacks does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of regular schedular standards. CONCLUSION OF LAW The criteria for an extraschedular disability rating for bronchitis with asthmatic attacks have not been met. 38 C.F.R. § 3.321(b)(1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural History VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. 38 C.F.R. § 3.321. Under 38 C.F.R. § 3.321(b)(1), to accord justice, in an exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director of Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability. In Thun v. Peake, 22 Vet. App. 111, 115 (2008), the United States Court of Appeals for Veterans Claims provided a sequential three-step analysis to determine whether an extraschedular rating is warranted. Step one is to determine whether the schedular rating adequately contemplates a claimant's disability picture. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral to the Director of the Compensation and Pension Service for consideration of an extraschedular rating is required. If the schedular rating does not contemplate the level of disability and symptomatology and is found inadequate, then step two is to determine whether there is an exceptional disability picture. If the disability picture meets the second step, 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 governing norm in an exceptional case is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In its decision in September 2011, the Board denied the claim for a schedular rating higher than 30 percent for bronchitis with asthmatic attacks. However, the Board found that referral for extraschedular consideration was warranted as the evidence was suggestive of interference with employment. Specifically, at her October 2003 VA examination the Veteran had reported as a result of her bronchitis with asthmatic attacks, she had missed two months of work in that year and at her October 2010 VA examination she reported that as a result of her bronchitis with asthmatic attacks, she only worked, on average, 4 days per month. As the Board cannot make a determination as to an extraschedular rating in the first instance, the Board remanded the case to the RO for consideration of an extraschedular rating. Floyd v. Brown, 9 Vet. App. 88, 95 (1996). In April 2012, in accordance with 38 C.F.R. § 3.321(b)(1), the RO referred the claim to VA's Director of Compensation and Pension Service for consideration of an extraschedular rating. In a June 2012, VA's Director of Compensation and Pension Service determined that an extraschedular rating was not warranted. As the procedural development required by 38 C.F.R. § 3.321(b)(1) and Thun has been completed, namely, referral of the case to VA's Director of Compensation and Pension Service for consideration of extraschedular evaluation in the first instance, the case has been returned to the Board for its review. II. Analysis The Veteran's Bronchitis with asthmatic attacks is currently rated under 38 C.F.R. § 4.96, Diagnostic Code 6602 as 30 percent disabling. Under Diagnostic Code 6602, the schedular criteria for the next higher disability rating, 60 percent, are a FEV-1 of 40 to 55 percent of predicted value; or an 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. Of record are numerous VA examinations evaluating the Veteran's service-connected bronchitis with asthmatic attacks. The Veteran was afforded VA respiratory examinations in October 2003, November 2004, September 2005, March 2008 (which did not include PFT results obtained upon examination), and in June 2010. The examination reports of record indicate that the Veteran treated her bronchitis with asthmatic attacks with daily inhalational and oral bronchodilator therapy and medication; however, they did not contain any indication that she required at least monthly visits to a physician for required care of exacerbations, or the use of intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. The Board acknowledges that the November 2004 VA examination report indicated that the Veteran took steroids for two weeks, but then discontinued their use. Additionally, the September 2005 examination report reflected that the Veteran was treated with steroids on one occasion in July 2005, as well as on numerous occasions in 2004. Additionally, none of the VA examination reports of record reflect FEV-1 of 40-55 percent predicted, FEV-1/FVC of 40-55 percent, or at least monthly visits to a physician for required care of exacerbations. Also of record are VA outpatient treatment records that show the Veteran receives regular treatment for a variety of medical conditions, including intermittent treatment for her bronchitis with asthma. A review of these records shows that in June 2006 the Veteran reported intermittent upper respiratory infections and an episode of pneumonia that required hospitalization. A subsequent record in July 2007 shows that the Veteran reported her bronchitis was under control with her medication and denied experiencing any asthma attacks. The remainder of the VA outpatient treatment records contain no indication that the Veteran's bronchitis with asthmatic attacks is more severe than what is reflected in the VA examination reports of record. In short, the evidence shows that Veteran's bronchitis with asthmatic attacks required daily bronchodilator therapy and inhalational anti-inflammatory medication which is adequately reflected in the current 30 percent disability evaluation. In its determination, VA's Director of Compensation and Pension Service found that the evidence did not present such an exceptional or unusual picture as to render impractical the application of the regular schedular standards as pulmonary function test results demonstrated at a minimum FEV-1 of 60 percent predicted value and FEV-1/FVC of 80 percent and that while the Veteran reported two or three incapacitating episodes of asthma per year, there were no medical records or hospitalization reports to confirm these reports. Furthermore, the records indicated that the Veteran's bronchitis with asthmatic attacks was under control with medication. The Veteran contends that her bronchitis with asthmatic attacks interferes with her employment as she reported that in 2003 she missed two months of work and in 2010 she only worked an average of four days per month, as a result of her bronchitis. In support of her contentions, the Veteran has submitted time and attendance logs from her place of employment from January 2004 through November 2011. While these logs indicate that during this timeframe, the Veteran took a significant amount of sick leave over the course of each year, there is no indication in the log suggesting that the sick leave was taken as a result of her bronchitis with asthmatic attacks. Additionally, the Board notes that the Veteran now service-connected for cardiomyopathy with congestive heart failure, and is in receipt of a 100 percent disability rating, effective June 2007; symptoms that have been associated with this disability include dyspnea on exertion and chronic fatigue. Simply stated, the Veteran has a severe service connected disability (for which she is already compensated at 100%) that may not be used to increase her other service connected problem before the Board at this time. Further, she receives somewhat regular care at the VA medical center for various non-service-connected medical conditions. There is no indication in the VA outpatient treatment notes of record that the Veteran suffers from manifestations of her bronchitis with asthmatic attacks which cause her to miss work on a regular basis. In fact, the Veteran's VA outpatient treatment for her bronchitis with asthmatic attacks could only be described as intermittent. at best. For the foregoing reasons, the Board finds that the Veteran's bronchitis with asthmatic attacks does not present an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, which would render impractical the application of the regular schedular standards. As the preponderance of the evidence is therefore against the Veteran's claim for an extraschedular rating, that claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is re-adjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In a claim for increase, notice requirements include the type of evidence needed to substantiate the claim, namely evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in October 2004, June 2005, May 2008, and June 2011 that fully addressed all notice elements and was sent prior to the initial RO decision in these matters. The letter informed the Veteran of what evidence was required to substantiate her claim and of her and VA's respective duties for obtaining evidence. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In accordance with 38 C.F.R. § 3.321(b)(1), the RO referred the matter of an extraschedular rating to the Director of Compensation and Pension Service for consideration. In an October 2012 supplemental statement of the case, the RO notified the Veteran of the determination of VA's Director of Compensation and Pension Service. In an October 2012 statement, the Veteran's representative asserted that the currently assigned 30 percent disability rating was not commensurate with the severity of her disability; however, no supporting evidence that her condition had worsened was provided. As there is no evidence that bronchitis with asthmatic attacks has materially changed since the Veteran was last examined by VA, the criteria for reexamination under 38 C.F.R. § 3.327 have not been demonstrated. Thus, the Board has proceeded without remanding for an examination. Finally, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of her claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to an extraschedular disability evaluation for bronchitis with asthmatic attacks is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs