Citation Nr: 1323478 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-27 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating higher than 30 percent for bilateral ethmoidal and frontal sinusitis. 2. Entitlement to a rating higher than 30 percent for bronchial asthma, prior to April 10, 2013. 3. Entitlement to a rating higher than 60 percent for bronchial asthma, from April 10, 2013. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from March 1957 to February 1959. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In March 2013, the Board remanded these claims for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). That development having been completed, the claim is now ready for appellate review. In a May 2013 rating decision, the RO granted an increased evaluation of 60 percent for bronchial asthma, effective April 2013. Despite the grant of this increased evaluation, the Veteran has not been awarded the highest possible evaluation for the entire appeal period. As a result, he is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the 60 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993). The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not raised a claim for TDIU and the evidence does not indicate that he is unemployable due to his service-connected respiratory and sinus disabilities. See April 2013 VA examinations. Accordingly, the Board finds that Rice is not applicable in this case. FINDINGS OF FACT 1. The Veteran's has not had radical surgery with chronic osteomyelitis or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus and purulent discharge or crusting after repeated surgeries. 2. Prior to February 13, 2012, the Veteran's bronchial asthma was not manifested by a FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or monthly visits to a physician for required care of exacerbations, or intermittent courses of systemic corticosteroids. 3. From February 13, 2012 to April 10, 2013, the Veteran's bronchial asthma required intermittent courses of systemic corticosteroids. 4. From April 10, 2013, the Veteran's bronchial asthma is not manifested by a FEV-1 of 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 required daily use of systemic high dose corticosteroids or immune-suppressive medications. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent for bilateral ethmoidal and frontal sinusitis are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.96, 4.97, Diagnostic Code 6510 (2012). 2. Prior to February 13, 2012, the criteria for a rating higher than 30 percent for the Veteran's bronchial asthma are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.96, 4.97, Diagnostic Code 6602 (2012). 3. From February 13, 2012 to April 10, 2013, the criteria for a rating of 60 percent, but no higher, for the Veteran's bronchial asthma are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.96, 4.97, Diagnostic Code 6602 (2012). 4. From April 10, 2013, the criteria for a rating higher than 60 percent for the Veteran's bronchial asthma are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.96, 4.97, Diagnostic Code 6602 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for an increased evaluation, the VCAA requires generic notice, that is, namely, information sent to the Veteran indicating that he or she must submit evidence demonstrating a worsening or increase in severity of the disability, the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In the present case, the VCAA duty to notify was satisfied by a letter sent to the Veteran in July 2008 that fully addressed the entire notice element and was sent prior to the initial regional office decision in this matter. The letter informed him of what evidence was required to substantiate his claims and of his and the VA's respective duties for obtaining evidence. In any event, in his statements and testimony, the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claims. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content. To fulfill Dingess requirements, in July 2008, the regional office provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits. The regional office successfully completed the notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist the Veteran in claim development. This includes assisting in the procurement of service treatment and hospitalization records and pertinent medical records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The regional office has obtained service treatment records, VA outpatient medical records, private medical records, and VA medical opinions and examinations pertinent to the issues on appeal. Virtual VA records have been reviewed. Therefore, the available medical evidence and records have been obtained in order to make an adequate determination. Neither the Veteran nor his representative has identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claims. The VA's duty to assist in the development of the claims is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Increased Rating Claims The Veteran seeks increased ratings for his service-connected bronchial asthma and bilateral ethmoidal and frontal sinusitis. He asserts his disabilities are more severe than what their current ratings represent. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two ratings shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The 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 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A. Entitlement to a Rating Higher Than 30 Percent for Bilateral Ethmoidal and Frontal Sinusitis Service connection for bilateral ethmoidal and frontal sinusitis was established by an August 1985 rating decision, at which time a 10 percent rating was assigned, effective February 1959. In May 2004, the rating was increased to 30 percent, effective March 2004. The Veteran asserted in July 2008 that his disability had increased in severity. The Veteran is currently rated as 30 percent disabled under Diagnostic Code 6510, for chronic sinusitis. A rating of 30 percent is warranted when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.79, Diagnostic Code 6510. A rating of 50 percent is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Id. The Veteran was afforded a VA examination in August 2008. The Veteran reported nasal surgery in 1959 and that he currently takes medications for allergic rhinitis, including topical nasal sprays and anti-histaminics. The Veteran complained of difficulty breathing through his nose but no purulent discharge or speech impairment. He also reported approximately eight to ten non-incapacitating periods of sinusitis per year. Examination revealed pale, engorged nasal mucosa and turbinates with bluish color mucosa. There were no polyps seen. There was partial obstruction of the right nostril, approximately 15 to 20 percent, anteriorly. There was no tissue loss or scarring, no tenderness, purulent discharge or crusting at the time. The Veteran was diagnosed with allergic rhinitis and nasal septal deviation, partially obstructive. VA outpatient records were reviewed. In July 2009, the Veteran had recurrent thick nasal discharge and underwent a radiology study. Results showed chronic frontal and ethmoid sinusitis. In February 2013, it was noted that he was on a nasal steroid for chronic sinusitis. Private treatment records submitted indicated treatment for sinusitis in previous years (2003 and 2004). The Veteran was afforded a VA examination in April 2013. The Veteran reported monthly sinusitis attacks. It was noted that the Veteran had a previous sinus surgery in October 1959, with no osteomyelitis, and currently has episodes of sinusitis, headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting. The Veteran noted seven or more non-incapacitating episodes of sinusitis in the past year but no incapacitating episodes. X-rays demonstrated normal paranasal sinuses. The examiner noted that the Veteran claimed monthly nasal stuffiness, sneezing, watery nasal secretions that sometimes turned yellowish and headaches. The examiner stated there was no evidence available of any radical surgery with chronic osteomyelitis and there was no evidence of near constant sinusitis in medical records or in the examination. Based on the previously discussed lay statements, VA outpatient records and examinations, private treatment records, and the history of chronic sinusitis, the Board finds the Veteran's current 30 percent rating appropriately compensates his symptoms, as he appears to suffer from more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. These symptoms are capable of lay observation, and the Veteran has asserted that he experiences these symptoms. A rating of 50 percent, however, is not warranted because the Veteran has not had radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Based on the evidence of record, the Veteran has had one sinus surgery, which was not radical or complicated by osteomyelitis. Additionally, the April 2013 VA examiner noted that the medical evidence does not indicate that the Veteran suffers from near constant sinusitis. As such, the Board finds he is not entitled to a 50 percent rating. The Board has also considered whether any alternate Diagnostic Codes allow for a higher evaluation. However, as the Veteran is diagnosed with chronic sinusitis, the Board finds that the most appropriate rating criteria is Diagnostic Code 6510. B. Increased Ratings for Bronchial Asthma Service connection for bronchial asthma was established by a February 2004 rating decision, at which time a 30 percent rating was assigned, effective July 2003. In a May 2013 rating decision, the RO granted an increased evaluation of 60 percent, effective April 2013. The Veteran contends that his disability is more severe than what is represented by a 30 percent rating, prior to April 2013, and a 60 percent rating, from April 2013. The Veteran is rated under Diagnostic Code 6602. Under 38 C.F.R. § 4.97, Diagnostic Code 6602 for bronchial asthma, a rating of 60 percent is warranted for a forced expiratory volume in one second (FEV-1) of 40 to 55 percent predicted, or the ratio of FEV-1 to forced vital capacity (FVC) (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. 38 C.F.R. § 4.97, Diagnostic Code 6602. A rating of 100 percent is warranted for a 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 requiring daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Id. Governing regulation requires that post-bronchodilator test results are to be used for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post- bronchodilator studies should not be done and states why, or unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96. 1. Entitlement to a Rating Higher Than 30 Percent for Bronchial Asthma, Prior to April 10, 2013 The Veteran seeks a rating higher than 30 percent for bronchial asthma, prior to April 2013. The Veteran was afforded a VA examination in September 2008. It was noted that there were no hospital admissions or visits to the emergency room since 2004. The Veteran complained of easy fatigue with exertion, daily productive cough of with sputum and almost daily wheezes. He reported using an inhaled bronchodilator daily, but no oral or parenteral steroids, antibiotics or immunosuppressive drugs. It was noted that the Veteran's treatment relieved his symptoms and acute attacks had stopped. The Veteran reported his acute attacks as occurring less than weekly but at least monthly and that his clinical visits for exacerbation occurred less than one per year. There was no history of respiratory failure. Examination revealed wheezing and an x-ray demonstrated findings consistent with chronic obstructive pulmonary disease (COPD). It was noted that the Veteran had an essentially normal pulmonary function study, with moderate air trapping and normal airway resistance. Oxygen saturation was 98 percent by pulse oxymeter. The Veteran has received private treatment for his asthma. Although records indicate treatment, there is no evidence in the private records of pulmonary function tests or frequent visits to support an increased rating. VA treatment records were reviewed. A VA report from October 2008 indicates that the Veteran's asthma was better controlled on the current treatment. However, in September 2009, it was noted that his asthma was not well controlled and that although he had no visits to the emergency room due to his asthma, he was using rescue medication daily, more than once a day. In February 2012, it was noted that the Veteran had a recent exacerbation of his asthma over the holidays, which required a visit to the emergency room, including 48 hours of observation. VA outpatient records from 2008 to prior to April 2013 do not include any pulmonary function tests, although records indicate continued treatment for asthma symptoms. The Board notes that VA records and private treatment records indicate the Veteran has consistently had respiratory problems and difficulty controlling his asthma. Importantly, the Board notes that VA outpatient records indicate the Veteran was prescribed Budesonide (a corticosteroid) in February 2012, which was filled in February 2012, March 2012, April 2012, May 2012, June 2012, July 2012, August 2012, January 2013, February 2013, and March 2013. As such, the Board finds that the Veteran meets the criteria for a rating of 60 percent, effective February 13, 2012, the date the corticosteroid was prescribed. A rating higher than 60 percent is not warranted, as there is no evidence that results from a pulmonary function test revealed an FEV-1 less than 40 percent predicted, an FEV-1/FVC less than 40 percent, or that the Veteran suffered respiratory failure or required daily use of systemic high dose corticosteroids. Although the Veteran was taking daily corticosteroids for the months of February through August, he did not take them for several months (September through December), therefore, his symptoms are more appropriately rated by the 60 percent rating, for intermittent courses of systemic corticosteroids (at least three per year), as opposed to the 100 percent rating, which is warranted for daily use of systemic high dose corticosteroids. Additionally, there is no evidence that the Veteran met the criteria, prior to February 13, 2012, for a rating higher than 30 percent. There is no evidence that the Veteran had a FEV-1 of 40 to 55 percent predicted, or a 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. There are sporadic visits to private physicians for treatment of asthma over the years, and multiple visits to VA centers as well. However, there is no indication that the Veteran required at least monthly visits or courses of systemic corticosteroids, prior to February 2013. The Board has also considered whether any alternate Diagnostic Codes allow for a higher evaluation. However, the Veteran has bee diagnosed with bronchial asthma. Thus, the Board finds that Diagnostic Code 6602 is the most appropriate. 2. Entitlement to a Rating Higher Than 60 Percent for Bronchial Asthma, From April 10, 2013 The Veteran seeks a rating higher than 60 percent for bronchial asthma, from April 2013. The Veteran was afforded a VA examination in April 2013. The Veteran reported that his asthma had worsened in the prior four years and that he is currently being treated at the VA with Albuterol and Symbicort. There were no noted hospitalizations, but the Veteran reported seeing his private physician approximately three times per year for exacerbations. The examiner noted that the Veteran's asthma required three intermittent courses of systemic corticosteroids in the prior 12 months, as well as inhalational bronchodilator therapy and inhalational anti-inflammatory medication. The Veteran's asthma did not require oral bronchodilators, antibiotics, or outpatient oxygen therapy. It was noted that the Veteran has not had any episodes of respiratory failure in the past 12 months and visited his physician less frequently than monthly. Pulmonary function tests were conducted and revealed a FEV-1 of 109 percent and a FEV-1/FVC of 106 percent, post-bronchodilator. The examiner noted that the Veteran did not have episodes of respiratory failure, but had daily use of oral corticosteroids, as per the medication list, of Budesonide. The examiner indicated that the Veteran required intermittent courses or bursts of systemic corticosteroids. Prescription records indicate the Veteran filled the prescription for the corticosteroid in January 2013, February 2013, March 2013, and May 2013. The Board finds that from April 2013, the Veteran is appropriately compensated for his asthma symptoms by the currently assigned 60 percent rating. A rating higher than 60 percent is not warranted as there is no evidence that a pulmonary function test revealed an FEV-1 less than 40 percent predicted, an FEV-1/FVC less than 40 percent, or that the Veteran suffered respiratory failure or required daily use of systemic high dose corticosteroids. In fact, pulmonary function tests revealed an FEV-1 of 102 percent and an FEV-1/FVC of 109 percent. Additionally, while the Veteran does take daily corticosteroids, they are in intermittent courses, for several months at a time. The Board has also considered whether any alternate Diagnostic Codes allow for a higher evaluation. However, the Veteran has been diagnosed with bronchial asthma. Thus, the Board finds that Diagnostic Code 6602 is the most appropriate. C. Extraschedular Ratings The VA Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that 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 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. See 38 C.F.R. § 3.321(b)(1). 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 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 claimant's level of disability and symptomatology and is 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 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, then the case must be referred to the 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected asthma and sinusitis are inadequate. A comparison of the level of severity and symptomatology of the Veteran's disabilities with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his respiratory or sinus disabilities, evidence of marked interference with employment, or evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the disabilities on appeal cause impairment with employment over and above that which is contemplated in the currently assigned ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a rating higher than 30 percent for bilateral ethmoidal and frontal sinusitis is denied. Prior to February 13, 2012, entitlement to a rating higher than 30 percent for bronchial asthma is denied. From February 13, 2012 to April 10, 2013, entitlement to a rating of 60 percent, but no higher, for the Veteran's bronchial asthma is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits. From April 10, 2013, entitlement to a rating higher than 60 percent for bronchial asthma is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs