Citation Nr: 1322715	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  08-39 133	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to an increased evaluation for bronchitis, currently evaluated as 30 percent disabling.


REPRESENTATION

Appellant represented by:	Michael J. Kelly, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran had active service from August 1964 to August 1967.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied the benefit sought on appeal.  


FINDING OF FACT

The competent medical, and competent and credible lay, evidence of record shows that the Veteran's bronchitis requires intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids; it does not result in 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 require daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications.


CONCLUSION OF LAW

The criteria for a 60 percent evaluation, but not higher, for bronchitis have been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.96, 4.97, Diagnostic Code 6602 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010).  Notice was provided in an October 2007 letter.  Accordingly, the duty to notify has been fulfilled. 

With regard to the duty to assist, the claim's file and Virtual VA eFolder contain the Veteran's service treatment records, VA medical records, a VA examination report and the transcript of a March 2013 hearing before the undersigned Veterans Law Judge.  The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record.  

During the hearing, the Veteran testified that he was scheduled for a pulmonary appointment later that month.  The Board held the record open to allow the Veteran to submit a copy of the corresponding medical record, but the Veteran failed to do so.  Thus, VA has been unable to obtain potentially favorable evidence.  "The duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

A VA examination was conducted in April 2008.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The April 2008 VA examination report indicates that the full claims file was not available.  Nevertheless, the evaluation was to assess the current level of the Veteran's disability.  The examiner considered the Veteran's medical history, including his lay reports of his symptomatology; described the Veteran's disability in sufficient detail; and fully described the functional effects caused by the Veteran's disability.  Stefl v. Nicholson, 21 Vet. App. 120 (2007).  

Significantly, during the hearing the Veteran did not testify that his service-connected disability had increased since the April 2008 VA examination.  Rather, he asserted that the 30 percent evaluation did not adequately address the treatment shown by the current record.  As a result, the Board finds that another VA examination is not warranted.  See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).

Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary.  See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991).  

The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.

Legal Analysis

With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, 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.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Reasonable doubt as to the degree of disability will be resolved in the veteran's favor.  38 C.F.R. § 4.3.

When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.

The Veteran's disability is evaluated as bronchial asthma under Diagnostic Code 6602.  A 60 percent evaluation is warranted 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 evaluation is warranted for 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 requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications.  Diagnostic Code 6602. 

A VA regulation, 38 C.F.R. § 4.96(d), provides that when applying Diagnostic Codes 6600, 6603, 6604, 6825-6833 and 6840-6845, post-bronchodilator studies are required.  By limiting the use of post-bronchodilator studies to these Diagnostic Codes, the regulation provides that pre-bronchodilator studies are to be used when applying Diagnostic Code 6602. 

Based on a thorough review of the record, the Board finds that the evidence supports a 60 percent evaluation for bronchitis.  The preponderance of the evidence is against entitlement to an evaluation in excess of 60 percent for bronchitis.  

The report of the April 2008 VA examination sets forth the relevant history, the Veteran's subjective complaints, and the examination results.  Pre-bronchodilator studies showed that FEV-1 was 62 percent of predicted, and FEV- 1/FVC was 94 percent of predicted.  

During the hearing, the Veteran testified that he used daily corticosteroids all year long.  VA treatment reports reflect that he was prescribed a corticosteroid at least once a day beginning in January 2007.  

The Veteran's use of systemic corticosteroids during the appeal period warrants a 60 percent evaluation under Diagnostic Code 6602.  

The Board finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 60 percent for bronchitis.  The Veteran does not contend, and the evidence does not show, that he has 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 requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications.  Diagnostic Code 6602.  Indeed, during the hearing the Veteran and his attorney only argued that his bronchitis satisfied for criteria for a 60 percent evaluation.  

The Board is aware of the Veteran's reported complaints, as reported during the hearing.  He stated that when he was outside during cold weather, his symptom of feeling congested started right away.  He said that at times he did not want to leave his house.  He also stated that coughing affected his sleeping.  As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness.  See Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.  The Veteran is not, however, competent to identify a specific level of disability of his disability according to the appropriate diagnostic code.  See Robinson v. Shinseki, 557 F.3d 1355 (2009).

Competent evidence concerning the nature and extent of the Veteran's bronchitis has been provided by the medical personnel who have examined or treated him during the current appeal.  The medical findings (as provided in the medical records) directly address the criteria under which bronchitis is evaluated. 

The observable symptoms that the Veteran describes simply do not satisfy the criteria for an evaluation in excess of 60 percent.  As noted above, the clinical findings do not support a higher evaluation.

With respect to an extraschedular evaluation, 38 C.F.R. § 3.321(b)(1) provides that ratings are to be based as far as practicable upon the average impairment of earning capacity.  However, in those exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation can be provided commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  Initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for a given disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required.  See VA Gen. Coun. Prec. 6-1996 (Aug. 16, 1996).  However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization).  If so, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for the completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  See Thun v. Peake, 22 Vet. App. 111 (2008).

In the present case, there is no indication in the objective record that the schedular rating criteria are inadequate to rate the Veteran's bronchitis.  There has been no demonstration of an exceptional or unusual disability picture, to include marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards.  There is no suggestion that the rating criteria do not reasonably describe the Veteran's disability level and symptomatology.  The Veteran's symptoms, as shown by the competent medical evidence, are addressed by the rating criteria.  Therefore, the Veteran's disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required.

The Board finds that the record does not raise a claim of entitlement to a total rating for compensation based on individual unemployability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Veteran does not contend, and the evidence does not show, that his bronchitis renders him unable to secure and follow a substantially gainful occupation.  

In sum, the medical evidence demonstrates that the Veteran is entitled to a 60 percent evaluation for bronchitis.  As the preponderance of the evidence is against entitlement to an evaluation in excess of 60 percent for bronchitis, the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

A 60 percent evaluation, but not higher, for bronchitis is granted.  



____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs