Citation Nr: 1322483 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-36 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial increased rating for asthma, currently evaluated as 30 percent disabling, to include the issue of a rating in excess of 10 percent prior to March 30, 2007. 2. Entitlement to a total rating on the basis of individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from July 1987 to November 1987 and from December 1990 to April 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 decision by the Department of Veterans Affairs (VA) North Little Rock, Arkansas Regional Office (RO). The Veteran presented testimony at a Videoconference hearing chaired by the undersigned Veterans Law Judge in November 2010. A transcript of the hearing has been associated with the claims folder. In February 2011, the Board remanded the claim for additional development. The U.S. Court of Appeals for Veterans Claims has held that TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the question of entitlement to a TDIU was raised by the evidence of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND This claim for an increased rating in this case arose from the initial grant of service connection, which was made effective from November 1994. The rating criteria for asthma changed in 1996, and as such, the criteria in effect both prior to this change and since, must be applied. The RO has addressed the Veteran's claim based on the newer criteria only, and the Veteran has not been informed of the content of the criteria in effect prior to 1996. These deficiencies must be corrected prior to a final decision being entered. [For informational purposes, prior to October 1996, bronchial asthma was rated as follows: a 10 percent rating was warranted if symptoms were mild with paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks; a 30 percent rating was warranted if symptoms were moderate with asthmatic attacks rather frequent (separated by only 10-14 days intervals) with moderate dyspnea on exertion between attacks; a 60 percent rating was warranted if symptoms were severe with frequent attacks of asthma (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication; more than lightly manual labor precluded; a 100 percent rating was warranted when symptoms were pronounced with asthmatic attacks very frequently with severe dyspnea on slight exertion between attacks and with marked loss of weight or other evidence of severe impairment of health. 38 C.F.R. § 4.97, Diagnostic Code 6602 (1995).] In addition, the evidence of record indicates that the Veteran has been receiving ongoing VA outpatient treatment. Updated VA treatment records should be obtained, to include the results of pulmonary function tests (PFTs) referenced from 2010 and 2012. Lastly, entitlement to a TDIU has been raised by the Veteran's representative in a May 2013 brief, and the evidence suggests that the Veteran is unemployed. As such the TDIU claim must be addressed on remand. Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran and his representative a notice letter that complies with the requirements of 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159, concerning the information or evidence needed to substantiate a claim for TDIU benefits, and the claim for an increased rating for asthma under the schedular rating criteria in effect prior to October 7, 1996. The Veteran also should be asked to complete a VA Form 21-8940, (Veteran's Application for Increased Compensation Based on Unemployability). 2. Notify the Veteran that he may submit statements, including from others, who have first-hand knowledge of the severity of his asthma and the impact his respiratory disorder, as well as the combined impact of his service-connected disabilities, on his ability to secure or follow a substantially gainful occupation. 3. Request that the Veteran identify any outstanding VA or private treatment records pertaining to his service-connected asthma and relevant to the TDIU claim. Take appropriate measures to request copies of any outstanding records the Veteran identifies, but in any event obtain the results of any PFTs conducted by VA in November 2010 and November 2012, as well as relevant records of VA treatment dated since March 2012. 4. After undertaking any additional development deemed appropriate, adjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to respond before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).