Citation Nr: 1325458 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 07-27 764A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for service-connected bronchial asthma. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from October 1987 to August 1989. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran requested a video conference Board hearing in his September 2007 substantive appeal. He was sent a letter indicating that he was scheduled for a Travel Board hearing in January 2009. The Veteran failed to appear at the scheduled proceeding. He did not request to reschedule that hearing and he has not provided good cause for his failure to appear. Accordingly, the Board will review his appeal as if he withdrew his hearing request. See 38 C.F.R. § 20.702(d) (2012). The Board remanded these matters in February 2011 for further evidentiary development. The RO continued the denial of the claims as reflected in the October 2012 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. The issue of entitlement to a TDIU prior to May 1, 2012 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence shows that prior to May 1, 2012 the Veteran's forced expiratory volume (FEV-1) measurement was not 55 percent or less of predicted value, FEV-1/forced vital capacity (FVC) measurements was not 55 percent or less of predicted value post-bronchodilator, the Veteran's asthma was not treated with three or more intermittent courses of systemic corticosteroids or immunosuppressive medications in a twelve month period, at least monthly visits to a physician for required care of exacerbations or more than one asthma attack with respiratory failure. 2. The preponderance of the evidence as of May 1, 2012 demonstrates forced expiratory volume (FEV-1) measurement was 81 percent of predicted value, FEV-1/forced vital capacity (FVC) measurements was 74 percent of predicted value post-bronchodilation with evidence of intermittent courses of systemic corticosteroids or immunosuppressive medications twice in a twelve month period and asthma attacks that result in respiratory failure four or more times per week. 2. The Veteran is in receipt of a 100 percent disability rating for service-connected bronchial asthma as of May 1, 2012 and, therefore, the issue of entitlement to a TDIU as of May 1, 2012 is moot. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for the Veteran's service-connected bronchial asthma have not been met prior to May 1, 2012. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6602 (2012). 2. The criteria for a 100 percent disability rating for the Veteran's service-connected bronchial asthma have been met as of May 1, 2012. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6602 (2012). 2. Entitlement to TDIU as of May 1, 2012 is moot. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. 38 C.F.R. § 3.159(b). 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). For increased-compensation claims, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; and (3) further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life"). The Board finds that a September 2008 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter notified the Veteran that he may submit evidence showing that his service-connected bronchial asthma has increased in severity. The RO informed the Veteran of the types of medical or lay evidence that he may submit. Specifically, the Veteran was informed that evidence that may show an increase in severity might be a statement from his doctor containing physical and clinical findings, results from laboratory tests or x-rays and the dates of examinations and tests. He was also informed that he could provide lay statements from individuals who are able to describe from their own knowledge and personal observations in what manner his disability has become worse. The letter notified the Veteran of how VA determines disability ratings and effective dates. The Veteran was informed of his and VA's respective duties for obtaining evidence. The information provided in the September 2008 letter satisfied the duty to notify provisions subsequent to the initial AOJ decision in September 2006. The Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, given sufficient time to respond and the AOJ readjudicated the case by way of the supplemental statement of the case issued in October 2012 after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment records, private treatment records, Social Security disability records, VA examination reports dated in September 2006 and May 2012 and lay statements from the Veteran. The VA examination report dated in May 2012 reflects that the examiner reviewed the claims file, obtained an oral history and conducted an evaluation of the Veteran with respect to symptoms of bronchial asthma. The examiner documented in detail the claimed symptoms and the results of their physical examinations to include the results of a pulmonary function test. Based on the foregoing, the Board finds the May 2012 VA examination is adequate for rating purposes. This issue was previously remanded in February 2011 to notify the Veteran of the provisions of 38 C.F.R. § 3.655(a) and (b) and to schedule the Veteran for a VA examination and opinion. A letter dated in March 2011 informs the Veteran of the provisions of 38 C.F.R. § 3.655(a) and (b). The claims file also contains a VA examination report dated in May 2012 that evaluates the Veteran's current severity of bronchial asthma. Accordingly, the Board finds that there has been substantial compliance with the February 2011 remand directives with respect to the Veteran's increased rating claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, the record presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claim for an Increased Rating The Veteran's bronchial asthma is currently evaluated as 30 percent disabling under 38 C.F.R. § 4.91, Diagnostic Code 6602 (2012), which pertains to bronchial asthma. Under Diagnostic Code 6602, a 30 percent evaluation is warranted for bronchial asthma for the following: forced expiratory volume (FEV-1) of 56 to 70 percent predicted, or; FEV-1/ forced vital capacity (FVC) of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent evaluation requires 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 rating is assigned for 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; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2012). A September 2006 VA examination reveals that the Veteran's current medications for bronchial asthma include Formoterol, Levalbuterol, Mometasone and Albuterol. He had been prescribed prednisone tapers in the past. He wheezed on a daily basis. Changes in weather and seasons were hard on him. The Veteran produced phlegm on a nondaily basis that was usually clear. He could walk optimally for one eighth of a mile. The Veteran reported that he was not working at that time and he has difficulty sustaining employment due to his asthma. He indicated having exacerbations two to three times a month that require bed rest. Physical examination revealed that the Veteran was in no acute distress. Pulse oximetry was 97 percent. There was no neck vein distention. Lungs were clear. P2 was not extenuated. There was no right ventricular heave. No evidence of cyanosis, clubbing or edema. Pre-bronchodilator shows actual FVC-1 was 1.27 and FEV-1/PVC was 49 percent. Unfortunately, the pulmonary function test results did not reveal the actual results for post-bronchodilator function. However, there was a notation that there was no significant change in post-bronchodilator function from the November 2004 test. A July 2008 examination for Social Security Disability purposes reveals that the Veteran reported daily symptoms of shortness of breath and wheezes with occasional cough. Generally, he used an inhaler two to three times a day. On bad days, he also found it necessary to use a nebulizer that he had at home. His asthma did not require an emergency room visit for at least the last one and a half years since he had begun using the nebulizer. He has had no episodes of pneumonia. The Veteran reported that he can walk approximately one block before becoming short of breath. The physician noted that the Veteran's reactive airway disease was severe by history, but clinically inactive at that time. The Veteran was provided with another VA examination in May 2012. The examiner noted that the Veteran's medications at the time of the examination were advair, twice a day; albuterol inhaler, approximately seven times a day. The Veteran was also on prednisone recently for respiratory problems. The examiner noted that the Veteran's respiratory conditions require intermittent courses or bursts of systemic (oral or parenteral) corticosteroids twice in the past twelve months. He also uses inhalational bronchodilator therapy intermittently. The examiner noted that the Veteran had asthma attacks with episodes of respiratory failure four or more times per week in the past twelve months. The Veteran saw his primary care physician at least three times in the past twelve months for asthma, but less frequently than monthly. Post-bronchodilator function FEV-1 was 81 percent predicted and FEV-1/FVC was 74 percent. Based on the evidence of record, the most pertinent of which was discussed above, the Veteran's service-connected bronchial asthma does not more closely approximate a FEV-1 of 40 to 55 percent predicted value or FEV-1/FVC of 40 to 55 percent at any time during the appeal period. In addition, the evidence of record does not show that the Veteran's FEV-1 was less than 40 percent predicted, FEV-1/FVC was less than 40 percent at any time during the appeal period. The preponderance of the evidence reveals that the Veteran's asthma has not resulted in at least monthly visits to a physician for required care of exacerbations or at least three or more intermittent courses of systemic (oral or parenteral) corticosteroids during a twelve month period. As noted above, the VA examiner in May 2012 indicated that the Veteran was prescribed prednisone two times in the past year. The overall evidence of record does not show that the Veteran had one or more attacks per week that resulted in episodes of respiratory failure prior to the May 1, 2012 examination. Nonetheless, the VA examiner in May 2012 determined that the Veteran had asthma attacks with respiratory failure four or more times per week. The Board notes that the Diagnostic 6602 provides that a 100 percent disability rating is warranted if the Veteran has more than one attack per week with episodes of respiratory failure. Accordingly, the Veteran's service-connected bronchial asthma more closely approximates a 30 percent disability rating prior to May 1, 2012 and a 100 percent disability rating as of May 1, 2012. The Board has considered whether additional staged ratings are appropriate. The overall evidence of record shows that the Veteran's bronchial asthma symptoms have not been so severe as to warrant a disability rating in excess of 30 percent prior to May 1, 2012. As such, a staged rating prior to May 1, 2012 is not warranted. According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). 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); 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 the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it 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. In this case, the Board finds that the evidence does not show such an exceptional disability picture that the available schedular evaluation for bronchial asthma is inadequate. A comparison between the level of severity and symptomatology of the Veteran's bronchial asthma with the established criteria found in the rating schedule for bronchial asthma shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The Board has determined that the evidence does not indicate that his bronchial asthma has rendered impracticable the regular schedular standards for rating such disability during the appeal period. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. In determining whether a higher rating is warranted for a service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against an increased rating for service-connected bronchial asthma prior to May 1, 2012 and the evidence is at least in equipoise on whether the Veteran is entitled to a total disability rating of 100 percent as of May 1, 2012. III. TDIU as of May 1, 2012 The Court has recognized that a 100-percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Locklear v. Shinseki, 24 Vet. App. 311, 318, footnote 2 (2011), Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period); 38 C.F.R. § 4.16(a) (2012) (TDIU "may be assigned, where the schedular ratings is less than total..."). In light of the foregoing, the Veteran's claim for entitlement to a TDIU as of May 1, 2012 is moot and no further discussion is deemed necessary. ORDER Entitlement to a disability rating in excess of 30 percent prior to May 1, 2012 is denied. Entitlement to a 100 percent disability rating as of May 1, 2012 is granted. Entitlement to a TDIU as of May 1, 2012 is moot. REMAND After careful review of the record, the Board finds that another remand is necessary for further evidentiary development of the remaining issue on appeal. The Board remanded this claim in February 2011 to provide the Veteran with a VA examination to determine if the Veteran's service-connected disability (in this case the Veteran is currently only service-connected for bronchial asthma) caused him to be unable to obtain or retain substantially gainful employment. The VA examiner in May 2012 noted that the Veteran is not currently working, but he worked previously as a facility/officer worker. The weather, allergies and dust would trigger breathing issues and he was let go for time missed from work in October 2011. The examiner determined that the Veteran's asthma is not well controlled by the amount of times he uses his inhaler and nebulizer. He would be able to work once the asthma symptoms are better controlled. It appears that the examiner is suggesting that the Veteran is currently unemployable as his asthma symptoms are currently uncontrolled; however, it is unclear based on her statements. The examiner did not provide an opinion on whether the Veteran is unable to obtain and maintain employment due solely to his service-connected disability. Furthermore, this opinion was provided prior to the results of the pulmonary function test. Based on the foregoing, the Board finds that another VA opinion is necessary to adequately address the Board's question in the February 2011 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Court or the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to the VA examiner who conducted the May 2012 VA examination. Based on a review of the claims file to include the results of the May 2012 VA examination, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that the Veteran is unable to obtain or maintain substantially gainful employment, at any time during the appeal period prior to May 1, 2012, due only to his service-connected disabilities (at this time he is only service-connected for bronchial asthma), consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. An explanation should be provided as to why the examiner believes the Veteran is or is not able to obtain or sustain employment due only to his service-connected disability. 2. If the examiner that conducted the May 2012 VA examination is not available, then schedule the Veteran for a VA examination by an appropriate specialist to ascertain whether the Veteran's service-connected disability results in the Veteran unable to obtain or maintain substantially gainful employment at any time during the appeal period prior to May 1, 2012. The claims file must be made available for review. All pertinent symptomatology and findings must be reported in detail. The examiner must elicit from the Veteran and record, for clinical purposes, a full work and educational history. The examiner should comment on the Veteran's level of occupational impairment caused by bronchial asthma symptoms. Based on the interview, examination, and review of the claims file, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that the Veteran is unable to obtain or maintain substantially gainful employment, at any time during the appeal period prior to May 1, 2012, due only to his service-connected disabilities (at this time he is only service-connected for bronchial asthma), consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. An explanation should be provided as to why the examiner believes the Veteran is or is not able to sustain or maintain substantially gainful employment due only to his service-connected disability. 3. Upon completion of the foregoing, readjudicate the Veteran's claim of entitlement to a TDIU prior to May 1, 2012, based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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 MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs