Citation Nr: 1323435 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 06-24 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a higher initial rating (evaluation), greater than 10 percent for bronchitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from January 2003 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which granted service connection and assigned a noncompensable (i.e. zero percent) initial rating. The Veteran appealed the initial rating assigned in this decision, and the issue came before the Board. In an October 2009 decision, the Board remanded the issue for additional development; the issue is now once again before the Board for adjudication. With regard to the Board's prior remand, a claimant is entitled to substantial compliance with Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Stegall) (holding that a remand by the Board imposes upon the Secretary of Veterans Affairs a duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 104 -05 (2008) (indicating that substantial compliance is the applicable standard for review of Board remands); 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 Board's remand order). In this case the Board has reviewed the remand orders of October 2009 against the subsequent actions taken by the RO and finds that such actions substantially comply with the Board's orders and adjudication of the appeal may proceed without prejudice. During the pendency of the appeal, the Veteran's claim file was transferred to the jurisdiction of the St. Petersburg, Florida RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not already of record. FINDING OF FACT Throughout the initial rating period, bronchitis has been productive of Forced Expiratory Volume in one second testing between 76 and 80 percent predicted, Forced Vital Capacity testing between 72 and 76 percent predicted, a ratio of Forced Expiratory Volume in one second over Forced Vital Capacity testing between 96 and 91 percent predicted, and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method between 84 and 97 percent predicted. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for bronchitis have not been met at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.96, 4.97, Diagnostic Code 6600 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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 or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided VCAA notice letters to the Veteran in March 2005, prior to the initial adjudication of the service connection claim and associated initial raiting, and in April 2006. The letters notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). To the extent that the VCAA duty to notify was satisfied subsequent to the initial RO decision, the issue was readjudicated, most recently, with the issuance of a Supplemental Statement of the Case in December 2011, thus curing any timing defect. 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 a Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). The Veteran's appeal arises from an appeal of the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003. (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under VCAA. Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of VA and private treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board. The Veteran was afforded VA examinations in October 2005 and October 2011. During the latter examination, the claims file was provided by the RO for review. During both examinations, each the examiner conducted a physical examination of the Veteran, conducted appropriate clinical diagnostic testing, took down the Veteran's history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions based on the examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of the present claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Initial Rating of Bronchitis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Veteran's appeal for a higher rating for bronchitis is an appeal from the initial assignment of a disability rating following a grant of service connection in January 2006. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Here, as the evidence discussed below shows, the Veteran's bronchitis has not significantly changed throughout the period on appeal, and a uniform evaluation is warranted. In the January 2006 rating decision on appeal, the Veteran was awarded service connection for bronchitis and granted an initial noncompensable evaluation effective February 26, 2005. In a subsequent December 2011 rating decision a 10 percent evaluation was assigned, effective February 26, 2005. The Veteran's bronchitis is rated under 38 C.F.R. § 4.97, Diagnostic Code (DC or Code) 6600 (2012). Pulmonary function tests (PFTs) are required to evaluate a disability under Diagnostic Code 6600, unless (i) the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less, (ii) pulmonary hypertension, cor pulmonale, or right ventricular hypertrophy has been diagnosed, (iii) there have been one or more episodes of acute respiratory failure, or (iv) outpatient oxygen therapy is required. See 38 C.F.R. § 4.96(d)(1) (2012). When evaluating a disability based on PFTs, post-bronchodilator results are used, unless the post-bronchodilator were poorer than the pre-bronchodilator results. In those cases, the pre-bronchodilator results are used to determine the disability rating. See 38 C.F.R. § 4.96(d)(5) (2012). Under DC 6600 the Veteran's current 10 percent evaluation is contemplated by evidence of Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent predicted, or; a ratio of FEV-1 over Forced Vital Capacity (FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66 to 80 percent predicted. See 38 C.F.R. § 4.97, DC 6600. The next higher evaluation, 30 percent, is assigned for FEV-1 of 56 to 70 percent predicted, or; FEV-1/ FVC of 56 to 70 percent, or; DLCO (SB) 56 to 65 percent predicted. Id. A 60 percent evaluation is assigned for FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). Id. A 100 percent evaluation is assigned for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DCLO (SB) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; required outpatient oxygen therapy. Id. On VA examination in October 2005, the Veteran reported persistent bronchitis following onset of acute bronchitis in December 2003. She indicated that symptoms had improved after treatment with antibiotics, but that she continued to experience a persistent cough with sputum production on a daily basis. The Veteran denied any chronic treatment with antibiotics, oxygen, or other medication, although she had been given a prescription for Sudafed which she elected not to take because she was pregnant. The assessment following examination was chronic bronchitis. Pulmonary Function Testing (PFT) testing results were subsequently associated with the file and show FEV-1 was 76 percent predicted, FVC was 67 percent predicted, FEV-1/FVC was 96 percent predicted, and DLCO was 84 percent predicted. The examiner commented that PFTs were normal. In correspondence received in March 2006, the Veteran reported that she had again been diagnosed with bronchitis, and had been prescribed Proventil, Albuterol, and Amoxicillin. In private medical evaluations in January and April 2007, the Veteran had a normal respiratory rate without distress. Private medical records also show that from October 2010 to January 2011 the Veteran's lungs were clear to auscultation bilaterally. On VA examination in October 2011, the Veteran denied the use of any inhaled medication for the treatment of her bronchitis. The examiner opined that in the Veteran's case, her pre-bronchodilator FEV-1/FVC PFT was the most accurate reflection of her current pulmonary functioning. Such testing revealed FEV-1/FVC was 89 percent. Additionally, FEV-1 was 80 percent and FVC was 72 percent, while DLCO was 97 percent. The Veteran's bronchitis did not impact her ability to work, and the examiner's concluding opinion was that the Veteran's bronchitis was resolved with normal objective findings. With regard to the Veteran's FEV-1/FVC testing, the examiner reported this finding as 91 percent, however 38 C.F.R. § 4.96(d)(5) mandates that for rating purposes, pre-bronchodilator test results are to be used where such results are worse than the post-bronchodilator results. On PFT in October 2011, the pre-bronchodilator FEV-1/FVC ratio was worse than the post-bronchodilator results, and thus is the result relied on by the Board for the purposes of evaluation the Veteran's service-connected bronchitis. After reviewing all the evidence, lay and medical, the Board finds that for the entire appeal period the Veteran's bronchitis has been not more than 10 percent disabling based on application of DC 6600. Specifically, in order for the Veteran to be awarded a higher evaluation, the evidence must show FEV-1 of 56 to 70 percent, or; FEV-1/ FVC of 56 to 70 percent, or; DLCO (SB) 56 to 65 percent predicted. 38 C.F.R. § 4.97, DC 6600. Here, PFTs have objectively shown that the Veteran's FEV-1 has been between 76 and 80 percent predicted, FVC has been between 72 and 76 percent predicted, and FEV-1/FVC has been between 96 and 91 percent predicted. DLCO has been from 84 to 97 percent predicted. Based on the foregoing, the weight of the lay and medical evidence demonstrates that the Veteran's bronchitis symptomatology has not reached the level of a 30 percent evaluation as contemplated by the rating schedule. Accordingly the Board concludes that the Veteran's bronchitis has been 10 percent disabling throughout the entire initial rating period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for a rating based on extraschedular considerations is warranted. An extraschedular disability rating is warranted based 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. 38 C.F.R. § 3.321(b) (2012); see 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 veteran is entitled to an extraschedular rating. First, the Board must 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 claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must 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 schedular 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, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by service-connected bronchitis is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Code 6600, specifically provides for disability ratings based on pulmonary function testing and other symptoms such as maximum oxygen consumption, right heart failure, right ventricular hypertrophy, pulmonary hypertension, acute respiratory failure, or outpatient oxygen therapy where such symptoms are clinically indicated. See 38 C.F.R. §§ 4.21, 4.96, and 4.97. In this case, considering the lay and medical evidence, the Veteran's bronchitis is manifested by impaired breathing. Pulmonary function testing revealed FEV-1 of no worse than 76 percent predicted, FEV-1/FVC of no worse than 91 percent predicted, and DLCO (SB) of no worse than 84 percent. These symptoms and findings are considered by pulmonary function testing results listed under the schedular rating criteria. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). For these reasons, the Board finds that the schedular rating criteria is adequate to rate service-connected bronchitis, and referral for consideration of an extraschedular evaluation is not warranted. Finally, as the record does not reveal that the Veteran is claiming that she is rendered unemployable by virtue of her bronchitis, and the October 2011 VA examiner expressly opined that her service connected bronchitis did not impact her ability to work. The Board finds that the record has not raised an implied claim for a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial evaluation in excess of 10 percent for bronchitis disability is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs