Citation Nr: 1319725 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-39 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an increased rating for asthma, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from May 1994 to May 1997. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision in March 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. That rating denied an evaluation in excess of 10 percent for the Veteran's service-connected asthma. During the course of the appeal, the RO issued an additional rating decision, in March 2011, which granted an increase to 30 percent, effective the date of the Veteran's claim (November 2007). On a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the issue is remains in appellate status. The Veteran requested and was scheduled for a hearing in his appeal before a Veterans Law Judge. He failed to report for the scheduled hearing. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702 (d) (2012). Accordingly, this Veteran's request for a hearing is considered withdrawn. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. While VA treatment records dated after the last supplemental statement of the case are of record, the Veteran's representative waived review of the evidence by the agency of original jurisdiction in May 2013. Therefore, there is no prejudice to the Veteran for the Board to proceed to decision. FINDING OF FACT At no point during the appeal has the Veteran's asthma resulted in pulmonary function testing revealing forced expiratory volume in one second (FEV-1) of 40 to 55 percent predicted, or FEV-1/forced vital capacity (FVC) of 40 to 55 percent; the objective medical evidence does not reflect monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic corticosteroids. 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, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.97, Diagnostic Code 6602 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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); 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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 RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in January 2008, prior to the adjudication of the Veteran's claim, discussed the evidence necessary to support a higher evaluation. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. He was also advised of the manner in which VA determines disability ratings and effective dates. In October 2008 the Veteran was advised of the specific criteria under which his asthma is evaluated. The Board finds that the content of the preadjudicatory notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Therefore, the record reflects that he was provided with a meaningful opportunity during the pendency of his appeal such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. With respect to VA's duty to assist, VA treatment records and private treatment records have been obtained and associated with the record. VA examinations have been conducted. The Board finds that the examinations were adequate in that they were conducted by neutral, skilled providers who reviewed the record, interviewed the Veteran, and performed appropriate physical examinations prior to providing their conclusions. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. §1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2012). In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. §4.2 (2012). 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 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2012); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In this case, the Board has concluded that the disability has not significantly changed and that a uniform evaluation is warranted for the period considered. The Veteran submitted the instant claim for increase in November 2007, indicating that his asthma had worsened. On VA examination in February 2008, the Veteran reported daily cough without sputum production, hemoptysis, or anorexia. He indicated that he became dyspnic after walking two blocks on level ground. The examiner noted that the Veteran's medications included Singulair daily, an Albuterol inhaler as needed, Albuterol nebulizer as needed, and Advair daily. The Veteran reported that he had been seen in the emergency room four times in the previous year and that he required bed rest for a period of two to three days on each occasion. Physical examination revealed no cor pulmonale, renovascular hypertension, or pulmonary hypertension. The Veteran was noted to be markedly obese; the examiner indicated that there was no record of weight changes. Pulmonary function tests revealed forced vital capacity (FVC) of 96 percent predicted, and forced expiratory volume in one second (FEV-1) of 93 percent predicted. Notably, the post bronchodilator value for forced expiratory volume in one second over forced vital capacity (FEV-1/FVC) was not provided. The diagnosis was mild, chronic, persistent asthma. A January 2009 VA treatment record indicates that the Veteran was seen in the emergency room with complaints of shortness of breath of three to four days' duration. He was administered Prednisone and Albuterol. His symptoms subsided and he was released. An additional VA examination was carried out in November 2010. The Veteran reported that he used his Albuterol inhaler two to three times per day. He complained of occasional nonproductive coughing. He endorsed occasional wheezing, but denied hemoptysis and shortness of breath. On physical examination his lungs were clear bilaterally. X-rays were normal. Pulmonary function tests revealed FVC of 102 percent predicted and FEV-1/FVC of 92 percent predicted. The Veteran was again seen in a VA emergency room in February 2011. He reported that his inhaler had not worked since the previous week. He was administered Albuterol and Atrovent nebulizer treatments. He was prescribed a Prednisone taper and discharged. The Veteran was hospitalized from November 2011 to June 2012 for complications following exploratory laparoscopy for diverticulitis. Records related to that hospitalization are negative for any indication of asthma exacerbations. In November 2012, the Veteran presented to a VA emergency room with complaints of wheezing and a dry cough of two days' duration. He noted that he had run out of his Albuterol inhaler. The Veteran was given three nebulizer treatments and discharged with a six-day Prednisone taper. In March 2013, the Veteran presented with complaints of shortness of breath and wheezing. He indicated that his symptoms had persisted for three days. He noted that he had been staying with his girlfriend intermittently, and that she had a cat. The provider noted that the Veteran's medications included an Albuterol inhaler. The assessment was asthma exacerbation likely secondary to a viral upper respiratory infection and cat dander. After treatment, the Veteran was discharged with a four-day prescription for Prednisone. The Veteran has been assigned a 30 percent evaluation under 38 C.F.R. § 4.97, Diagnostic Code 6602 for bronchial asthma. Diagnostic Code 6602 provides a 30 percent evaluation with a 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 higher, 60 percent evaluation is assigned with a 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. The maximum, 100 percent evaluation is assigned with a FEV-1 of less than 40 percent predicted, or; FEV-1/FVC of less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; bronchial asthma requiring daily use of high dose corticosteroids or immuno-suppressive medications. A note to Diagnostic Code 6602 states that in the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. Upon review of the record, the Board concludes that an evaluation in excess of 30 percent is not warranted. Here, the RO has explained that the current 30 percent evaluation is based on the Veteran's use of a daily inhalational bronchodilator therapy. However, the criteria for a higher, 60 percent evaluation for asthma are not met. In that regard, the current medical evidence demonstrates that the Veteran has pulmonary function tests results including a FEV-1 of 95 percent predicted and FEV-1/FVC of 92 percent predicted. Such values do not warrant the higher, 60 percent rating, which requires a FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent. Moreover, the record does not demonstrate at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic corticosteroids. In light of the foregoing, the Board finds that during the course of the relevant rating period on appeal, a higher evaluation for bronchial asthma is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veterans entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected asthma. The medical evidence fails to demonstrate, at any time during the appellate period, symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's asthma is specifically contemplated under the appropriate rating criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. Even still, the record does not show that the Veteran has required hospitalization, or has lost significant periods of work, due to his asthma. In short, the evidence does not support the proposition that the Veteran's service connected asthma presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an evaluation in excess of 30 percent for asthma is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs