Citation Nr: 1319318 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 04-41 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability evaluation in excess of 30 percent for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from June 1955 to March 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a 10 percent evaluation for the Veteran's asthma. Subsequently, in a June 2011 rating decision, the RO increased the evaluation to 30 percent, effective May 20, 2003 (the date of the claim). As this increased rating does not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn his claim, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In June 2007, February 2008, July 2008, May 2009, August 2010, February 2012, and November 2012, the Board remanded the issue on appeal for further examination. In January 2007, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board. By correspondence dated in January 2008, the Veteran was informed of this fact and that he had the right to have another hearing. By correspondence dated in January 2008, he requested a videoconference hearing before a VLJ to be held at the RO in St. Petersburg, Florida. The Veteran was scheduled for a video conference hearing before a VLJ in June 2008. Prior to the hearing, on June 26, 2008, the Board received a letter from the Veteran indicating that he was unable to appear to his scheduled hearing due to medical problems and requested that it be rescheduled. Another video conference hearing before a VLJ was scheduled for February 2009, and notice of such was mailed to the Veteran at his address of record. The Veteran failed to report for this hearing without explanation or request to reschedule. The hearing request is therefore considered withdrawn. See 38 C.F.R. § 20.704. The Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran submitted a VA Form 21-22 in May 2013 naming the Disabled American Veterans (DAV) as his current representative. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's asthma has been manifested by daily inhalational or oral bronchodilator therapy, but not FEV-1 of 40 to 55 percent predicted or FEV-1/FVC of 40 to 55 percent, intermittent course of systemic (oral or parenteral) corticosteroids, or monthly care by a physician for exacerbations. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for asthma have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1 - 4.7, 4.97, DC 6602 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The 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 claimant and his representative of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). A letter dated in June 2003 informed the Veteran that an increase in his asthma may be shown by doctor statements, physical and clinical evaluation results, and statements from individuals who are able to describe from their knowledge and personal observations the manner in which the disability has worsened. Also, a June 2009 letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the June 2009 letter was provided after the initial adjudication, the Veteran has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. The claim was subsequently readjudicated in several supplemental statements of the case, most recently in May 2013. The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. The evidence includes VA examination reports, VA treatment records, and lay statements. He has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA). See 38 C.F.R. § 3.159 (c) (2). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was afforded VA examinations to evaluate the severity of his asthma in July 2003, October 2009, and February 2013. The Board finds that the examinations were adequate as they fully address the rating criteria. See 38 C.F.R. § 3.326 (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Importantly, the Board may presume that VA medical staff competently discharged their duties. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir 2009) (confirming that the presumption of regularity does not only apply to procedural matters, but also applies to the competency of medical professionals). Thus, the Board may presume that the VA examiners accurately transcribed the Veteran's assertions. Furthermore, the Veteran has not asserted, and the evidence does not indicate, that his symptoms have materially increased in severity since the February 2013 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds that the examiners' opinions are supported by adequate rationales and also comply with the terms of the Board's prior remands. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall, supra. The Veteran was provided an opportunity to set forth his contentions during the hearing before a VLJ in January 2007. In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the January 200 hearing, the VLJ identified the issue on appeal. Testimony was solicited regarding the Veteran's respiratory symptoms. The hearing discussion did not reveal any evidence that might be available that had not been submitted. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. In addition, the Veteran has further been given the opportunity to submit evidence, and he has provided written argument in support of his claim. The Veteran has not identified, and the record does not indicate, existing records pertinent to the claim decided herein that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptoms 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 applies 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 consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation has already been established, the United States Court of Appeals for Veterans Claims has held that consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In July 1958, the RO granted service connection for asthma and assigned a 10 percent evaluation, effective March 22, 1958. In June 2011, the RO increased the evaluation to 30 percent, effective May 29, 2003. The Veteran's service-connected asthma is rated under DC 6602, which contemplates bronchial asthma. A 30 percent disability rating is warranted where pulmonary function tests (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 immunosuppressive medications are required on a daily basis. 38 C.F.R. § 4.97, DC 6602 (2012). As an initial matter, the Board notes that the Veteran's respiration is affected by his service-connected asthma, as well as his nonservice-connected chronic obstructive pulmonary disease (COPD). The Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). There is no medical evidence of any such distinction regarding the Veteran's pulmonary symptomatology until the February 2013 VA examiner concluded that the Veteran's primary respiratory condition is COPD. Therefore, the Board will assume that all of the Veteran's pulmonary symptomatology is attributed to his service-connected asthma prior to February 2013. PFTs conducted in May 2002 were within normal limits. An October 2002 VA examination conducted for an unrelated problem shows that the Veteran's shortness of breath was getting worse. The examiner indicated that this worsening could be related to either the Veteran's service-connected sinusitis or his recent thoracic surgery. The Veteran submitted to a VA examination in July 2003. He reported a chronic and productive cough, especially at night, no emergency room treatment for asthma, a positive response to occasional use of medication, no incapacitating periods, and no oxygen required. He complained of trouble breathing at rest and with exertion. He used an inhaler every other day, and he used a corticosteroid every day. Upon examination, the examiner noted the Veteran's lungs to be clear with no acute disease. PFTs were within normal limits. The diagnosis was COPD and asthma. A May 2004 VA treatment record shows that the Veteran used an albuterol inhaler as needed. However, later that month he indicated that he was running out of his corticosteroid inhaler, which the clinician replaced with a different corticosteroid. In July 2004, the Veteran stated that he used a corticosteroid inhaler twice a day. The diagnosis was COPD and asthma and continued smoking. The Veteran was using a corticosteroid inhaler in December 2004. In March 2005, the Veteran indicated that he was using a corticosteroid inhaler. It is unclear whether he was using a corticosteroid inhaler in February 2006, as prescription records reflect both "active" and "inactive" status. In December 2006, the Veteran's flunisolide inhaler was replaced with mometasone. During the Veteran's January 2007 hearing, he stated that he became short of breath whenever he lay down. He specifically denied any asthma attacks that required emergency treatment. He testified that he takes his medication "as I feel like I need it." Hearing Transcript at 4. He stated that he was no longer able to do any strenuous activities. The Veteran complained of excessive phlegm and occasional wheezing. He also stated that he was unable to walk more than 15 minutes. A February 2007 prescription record indicates that the mometasone prescription was "inactive." PFTs were reportedly conducted in August 2007, but the Board notes that the results are not in the claims file. A September 2007 VA treatment record contains a COPD diagnosis. In April 2009, it was noted that the Veteran's COPD remained unchanged. The Veteran submitted to another VA examination in October 2009. He reported that his asthma was better as he did not require medication on a daily basis; however, he used albuterol three to four times a year. He also stated that he smoked a pack of cigarettes a day. The Veteran did not report any clinical visits for exacerbations of his asthma, although he did indicate having several acute attacks per year. He also reported having an intermittent cough. Upon examination, there were no abnormal respiratory findings. Chest X-rays were within normal limits without edema or effusion. The diagnosis was asthma. The examiner reviewed the claims file and noted no effects on the Veteran's daily activities. PFTs conducted in November 2009 revealed a moderate obstructive ventilator impairment and no bronchodilator response. A significant decline in the diffusing capacity, but not spirometry, was noted when compared to the August 2007 PFTs. In November 2010 and March 2012, it was noted that the Veteran used albuterol as needed for his COPD. Poor inspiratory airflow and mild prolonged expiration were noted upon examination in July 2012. In December 2012, the Veteran was prescribed flunisolide for ear fullness. The Veteran submitted to a third VA examination in February 2013. He reportedly used his albuterol inhaler twice a day and saw his treating physician every few months. He had not been treated in the emergency room or admitted to the hospital for an acute asthma attack in the past year. He complained of "a little extra effort" breathing in and out, occasional cough with white sputum, and dyspnea on exertion. He could walk one long block. PFTs revealed a mild obstructive ventilator impairment and no bronchodilator response. Diffusing capacity was mildly reduced. The examiner reviewed the claims file and noted that an ears, nose, and throat (ENT) doctor had recently prescribed a flunisolide nasal inhaler for ear fullness. He further noted that no other corticosteroid was listed as a current prescription. The examiner specifically found no intermittent courses of systemic corticosteroids for treatment of asthma in the past year. He also found no evidence of monthly visits for treatment of the Veteran's asthma in the past year. He concluded that the Veteran's asthma had no measurable impact on his ability to work. The examiner also noted that recent treatment records mentioned COPD repeatedly, but not asthma, and concluded that COPD was the Veteran's primary respiratory condition. Based on the medical evidence of record, the Board finds that an increased evaluation for service-connected asthma is not warranted. The medical evidence does not reflect either FEV-1 of 40 to 55 percent predicted or FEV-1/FVC of 40 to 55 percent at any time during the appeals period. The Board acknowledges that the Veteran was prescribed flunisolide, triamcinolone and mometasone, all inhaled corticosteroids, several times between May 2004 and December 2006. However, a 60 percent evaluation requires that a corticosteroid be oral or parenteral. The Veteran was on daily inhalational therapy, which is consistent with a 30 percent evaluation. Additionally, the evidence does not show that the Veteran has required monthly care by a physician for asthma exacerbations. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. The Veteran is competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's description of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In light of the holding in Hart, the Board has considered whether the Veteran is entitled to additional "staged" ratings. Based upon the record, the Board concludes that at no time during the appeal period has this disability been more disabling than as currently rated. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 30 percent. 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, for consideration of an extra-schedular evaluation 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. 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. Id. at 116. The Board has considered all respiratory symptoms in rendering this decision. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The schedular evaluation in this case is adequate. Ratings in excess of that assigned are provided for certain manifestations of the service-connected disorder, but the medical evidence reflects that those manifestations are not present in this case. The criteria fully address and consider the signs and symptoms complained of by the Veteran and reported clinically. This includes consideration of the impact of wheezing and shortness of breath. The criteria also provide higher levels of compensation for symptomatology worse than that currently manifested. The Veteran has not been hospitalized for treatment for his service-connected asthma. There is no evidence of marked interference with employment solely due to the service-connected asthma. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. As the Schedule is adequate, no further discussion of extraschedular evaluation under 38 C.F.R. § 3.321(b) is necessary. Moreover, the Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) is present here. None of the VA examination reports show that the Veteran is unemployable solely due to his asthma. In fact, the February 2013 VA examiner found that the Veteran's breathing problems have no effect on his ability to work. Therefore, any inferred TDIU claim is inapplicable in this case. ORDER Entitlement to an evaluation in excess of 30 percent for asthma is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs