Citation Nr: 1319494 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 09-19 001A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for the service-connected asthma. 2. Entitlement to eligibility for nonservice-connected VA pension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from July 16, 1974 to September 24, 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2008 and February 2010 rating decisions issued by the RO. In the February 2010 decision, the RO granted service connection for asthma and assigned a noncompensable rating effective beginning on May 7, 2009. In November 2011, the Veteran testified by way of a videoconference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the claims file. The Board remanded the case for additional development in February 2012. That development was completed and the case has been returned to the Board for appellate review. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issue of basis eligibility for nonservice-connected pension is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The December 2009 pulmonary function test showed findings of an FEV-1 of 116.8 percent of predicted, an FVC of 120.7 percent of predicted and an FEV-1/FVC of 80 percent. 2. The August 2012 pulmonary function test showed findings of an FEV-1 of 107 percent of predicted, an FVC of 118 percent of predicted and an FEV-1/FVC of 74 percent. 3. The service-connected asthma is not shown to be productive of disability picture manifested by the use of intermittent inhalational or oral bronchodilator therapy. CONCLUSION OF LAW The criteria for the assignment of a compensable rating for the service-connected asthma are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (DC) 6602 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any defect in the timing or content of such notice is not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an October 2009 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence are needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. However, as this appeal stems from the initial grant of service connection for asthma, the notice letter did not contain an explanation of the general rating criteria relevant to his service-connected asthma. The May 2011 Statement of the Case (SOC) set forth applicable criteria for ratings for asthma. After issuing the May 2011 SOC and affording the Veteran an opportunity to respond, the September and October 2012 Supplemental Statement of the Case (SSOC) included readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the VA treatment records and examination report. Further, the Board is aware that this appeal was, most recently, remanded by the Board in February 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The remand requested that the RO request and obtain outstanding VA treatment records and schedule the Veteran for a contemporaneous VA examination to evaluate the severity of his asthma. This development was completed. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order). The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and appearing for VA examinations. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any defect as to the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Finally, during the hearing, the undersigned VLJ clarified the issues and addressed the Veteran's contentions regarding the issue decided herein. It was clear from the hearing that the parties understood the issues. Such action supplemented VCAA development and complies with 38 C.F.R. § 3.103. Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. 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). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). Here the disability has not significantly changed and a uniform evaluation is warranted. The initial rating for the Veteran's asthma has been assigned pursuant to Diagnostic Code 6602, the criteria for evaluating bronchial asthma. See 38 C.F.R. § 4.97. A 10 percent rating is assigned for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent or intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is assigned 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 assigned 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) courses of systemic oral or parenteral corticosteroids. A 100 percent rating is assigned for 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 immunosuppressive medications. If the FEV-1 and the FVC are both greater than 100 percent, do not assign a compensable evaluation based on a decreased FEV-1/FVC ratio. See 38 C.F.R. § 4.96(d)(7) Analysis A December 2009 report of VA examination noted the Veteran's complaint of non-productive cough, wheezing (intermittent) and asthma. He reported having less than one clinical visit per year for exacerbations and less than one acute attack per year of the service-connected asthma. Objectively, the pulmonary function test (PFT) results included an FEV-1 of 116.8 percent of predicted, an FVC of 120.7 percent of predicted and an FEV-1/FVC of 80 percent. The diagnosis was that of asthma, in remission. The Veteran's asthma was noted to have no effects on his usual occupation, work or activities of daily living. A March 2012 VA treatment report noted that the Veteran was not on any inhalers for his asthma. An August 2012 VA examination reported that the Veteran's asthma did not require the use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics or outpatient oxygen therapy. The Veteran had not had any asthma attacks with episodes of respiratory failure in the past 12 months or any physician visits for the required care of asthma exacerbations. Objectively, the PFT results included an FEV-1 of 107 percent of predicted, an FVC of 118 percent of predicted and an FEV-1/ FVC of 74 percent. The examiner indicated that the FEV-1 percent of predicted test result most accurately reflected the Veteran's level of disability. Based on this record, the Board finds that the criteria have not been met for the assignment of a compensable rating for the service-connected asthma. In this regard, the Board notes that, while the December 2009 PFT results show FEV-1/ FVC of 80 percent and an August 2012 PFT results show FEV-1/ FVC of 74 percent, the regulations specifically state that where FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio alone shall not be assigned.38 C.F.R. § 4.96(d)(7). As this is shown to be the case here, an increased, compensable rating for the service-connected asthma based on these results is not assignable. The Board has also considered the Veteran's assertions as to the nature and severity of his symptoms; however, they are found to be of limited credibility and probative value in this case. The medical evidence including the Veteran's own statement made in connection with treatment is found to be more probative in determining whether the service-connected asthma meets the criteria for the assignment of a compensable rating in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Veteran testified at the November 2011 hearing that he experienced acute attacks of asthma approximately twice per month and used an inhaler until the symptoms subsided. However, on review of the medical record that included the Veteran's own statements, he is not shown to require the use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics or oxygen therapy. Further, the Veteran is not shown to have had any asthma attacks with episodes of respiratory failure in the past 12 months or to have required any physician visits for care of an asthma exacerbation. For the foregoing reasons, the Board finds that the claim for a compensable rating for the service-connected asthma must be denied. Additionally, the Board finds that the service-connected asthma is not shown to be productive of an exceptional or unusual disability picture as to warrant the assignment of a compensable rating on an extraschedular basis. See 38 C.F.R. § 3.321. Consideration of referral for an extraschedular rating 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. Therefore, referral for consideration of an extraschedular rating for asthma is not warranted. 38 C.F.R. § 3.321(b)(1). ORDER An increased, compensable rating for the service-connected asthma is denied. REMAND A prior Court or Board remand confers upon the appellant the right to compliance with that order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, with respect to the claim for nonservice-connected pension, in the February 2012 remand, the Board instructed the RO, in pertinent part, to schedule the Veteran for a VA examination in order to ascertain his entitlement to VA nonservice-connected pension benefits. The examiner was to identify and assess each nonservice-connected disability in terms of its impact on his ability to work. In the August 2012 report of VA examination, the examiner only addressed the service-connected asthma. Thus, another examination is necessary to comply with the previous request. Accordingly, this remaining matter is REMANDED for the following action: 1. The RO should take all indicated steps to have the Veteran scheduled for a VA examination to ascertain his entitlement to VA nonservice-connected pension benefits. The examiner must identify each nonservice-connected disability and assess each in terms of its impact on the Veteran's ability to work. A complete rationale should be provided for all opinions offered. 2. After completing all indicated development, the claim remaining on appeal must be readjudicated in light of all the evidence of record. If any benefit sought on appeal remains denied, a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs