Citation Nr: 1329013	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  07-35 492	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for sleep apnea.

2.  Entitlement to service connection for a heart disorder, to include ischemic heart disease, left ventricular hypertrophy, hyper-dynamic left ventricle, small left ventricle cavity, and bi-atrial enlargement.

3.  Entitlement to an initial compensable evaluation for allergic rhinitis.

4.  Entitlement to an initial evaluation in excess of 30 percent for asthma.


REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

R.N. Poulson, Counsel


INTRODUCTION

The Veteran served on active duty from December 9, 1963 to January 31, 1979; he had 8 years, 8 months, and 22 days of active service prior to December 9, 1963.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2006 and October 2006 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).

(The issues of entitlement to service connection for sleep apnea and a heart disorder are addressed in the remand that follows the decision below.)


FINDINGS OF FACT

1.  The Veteran's allergic rhinitis is not manifested by nasal polyps or by the obstruction of greater than 50 percent on both sides or by complete obstruction on one side.

2.  Prior to September 6, 2011, the Veteran's asthma required daily inhalational and/or oral bronchodilator therapy and intermittent systemic corticosteroid therapy; it was not manifested by an FEV-1 score or an FEV-1/FVC ratio of less than 40 percent of predicted value on objective pulmonary function testing (PFT), more than one attack per week with episodes of respiratory failure, or daily use of systemic (oral or parenteral) corticosteroids or immune-suppressive medications.

3.  From September 6, 2011, the Veteran's asthma has been manifested by need for daily inhalational or oral bronchodilator therapy, but not an FEV-1 score or an FEV-1/FVC ratio of 40 to 55 percent, intermittent course of systemic (oral or parenteral) corticosteroids, or monthly care by a physician for exacerbations.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable evaluation for service-connected allergic rhinitis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1 - 4.7, 4.97, Diagnostic Code (DC) 6522 (2013).

2.  Prior to September 6, 2011, the criteria for a 60 percent evaluation, and no higher, for service-connected asthma were met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1 - 4.7, 4.97, DC 6602 (2006). 

3.  From September 6, 2011, the criteria for an evaluation in excess of 30 percent for asthma have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1 - 4.7, 4.97, DC 6602 (2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The 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 & Supp. 2013); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2013). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The VCAA notice 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.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

For initial rating claims, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated and proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice.  See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of the rating claims decided herein.  The RO obtained treatment records from VA and private treatment providers.  The Board acknowledges the Veteran's contention that he received treatment for his asthma from Dr. D.N.R., his primary doctor, in March 2007.  In October 2007, the RO requested treatment records from March 2007 from Dr. D.N.R.  A negative response was received, so further attempts to obtain these medical records would be futile.  38 U.S.C.A. § 5103A.  In any event, the claims file contains treatment records from Dr. D.N.R. from March 2002 to May 2005.

In connection with his claims, the Veteran underwent VA examination in December 2005, September 2011, and December 2011; reports of those examinations are of record.  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).  As noted below, the Board finds that the VA examinations obtained in this case are adequate, as they are predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran, and document that the examiners conducted thorough examination of the Veteran and consideration of the evidence.  An explanation of the opinions offered by each examiner was provided. 

In addition, the Veteran has further been given the opportunity to submit evidence, and he has provided written argument in support of his claims.  The Veteran has not identified, and the record does not indicate, existing records pertinent to the claims decided herein that need to be obtained.  Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. § 5103A  and 38 C.F.R. § 3.159.

II.  Higher Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.97.

The Court has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Given that the Veteran appealed from an initial grant, the Board will evaluate the issues as claims for higher evaluations of the original awards.  When an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings.  Id.   

A.  Allergic Rhinitis

In January 2006, the RO granted service connection for allergic rhinitis and assigned a noncompensable evaluation, effective February 8, 2005.

Allergic rhinitis is evaluated under the criteria set forth in DC 6522.  A 30 percent evaluation is assigned when polyps are shown.  Without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side, a 10 percent evaluation is assigned.  38 C.F.R. § 4.97, DC 6522.  The schedule provides that a 0 percent (noncompensable) evaluation is assignable when the requirements for a compensable evaluation are not met, even when a 0 percent evaluation is not specifically listed under the applicable Code.  38 C.F.R. § 4.31.

The Veteran reports experiencing congestion and nasal symptoms, and a February 2005 CT scan revealed a deviated left septum.  However, no treatment record, either private or VA, indicates the presence of polyps at any time.  Moreover, no chronic obstruction of either nasal passage was found at any time.  The Board acknowledges the December 2005 VA examiner's finding of "an occluded left nare greater than the right."  Nevertheless, the December 2011 VA examiner specifically found that there was neither greater than 50 percent obstruction of the nasal passage on both sides nor complete obstruction on one side.  This finding is supported by VA treatment records, which reflect patent nares in August 2010, December 2010, and July 2011.  

Accordingly, and based on the totality of this evidentiary posture, the Board finds that the preponderance of the evidence is against the claim; there is no doubt to be resolved.  An initial compensable evaluation for service-connected allergic rhinitis is not warranted.

B.  Asthma

In January 2006, the RO granted service connection for asthma and assigned a 30 percent evaluation, effective February 8, 2005.  The Veteran contends that a total rating is warranted for this disability.  See March 2007 VA Form 21-4138.

The Veteran's asthma has been rated under 38 C.F.R. § 4.97, DC 6602, bronchial asthma.  DC 6602 is deemed by the Board to be the most appropriate Code, primarily because it pertains specifically to the service-connected disability in the Veteran's case (asthma).  Neither the Veteran nor his attorney has suggested or requested that another DC be used.  The Board acknowledges the Veteran's statement to a VA clinician in March 2011 that he reportedly suffered from congestive heart failure.  However, the September 2011 VA examiner specifically noted that there was no evidence of congestive heart failure.  

Effective October 6, 2006, VA added provisions that clarify the use of pulmonary function tests (PFTs) in evaluating respiratory conditions.  See 71 Fed. Reg. 52459  (Sept. 6, 2006) (codified at 38 C.F.R. § 4.96(d)).  Specifically, 38 C.F.R. § 4.96(d) was added to the Rating Schedule.  If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question.  38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC7-2003.  Here, the 2006 amendment applies  to all applications for benefits received by VA on or after October 6, 2006.  The Veteran filed his initial rating claim in February 2005, prior to effective date of the change.  

Regardless, the regulation change did not alter any of the specific criteria listed under 38 C.F.R. § 4.97, DC 6602 for bronchial asthma.  Rather, the new regulation affected how the evaluation criteria were applied, including when a PFT is required to evaluate the disability, when to apply pre-bronchodilator values for rating purposes, and which PFT result to use (FEV-1 versus FEV-1/FVC) when the level of evaluation would differ depending on the test used.  Neither the old nor the new regulations identify whether pre- or post-bronchodilator results should be used when determining disability ratings under DC 6602.  

Significantly, both prior to and after the above amendment, post-bronchodilator findings for PFTs are the standard in pulmonary assessment.  See 61 Fed. Reg. 46,720, 46,723-29 (Sept. 5, 1996) (noting that the results of testing following optimum therapy reflect the best possible functioning of an individual and are the figures used as the standard basis of comparison of pulmonary function).  Thus, the Board will, in accordance with longstanding VA practice, use post-bronchodilator results.

Under the rating criteria in effect prior to October 6, 2006, a 30 percent disability rating for bronchial asthma is warranted where PFTs show any of the following:  FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent; or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication.  A 60 percent disability rating contemplates PFTs that show any of the following:  FEV-1 of 40 to 55 percent predicted, 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 disability rating is warranted where PFTs show any of the following:  FEV-1 less than 40 percent predicted, FEV-/FVC less than 40 percent; or more than one attack per week with episodes of respiratory failure, or where the use of systemic high dose corticosteroids or immunosuppressive medications are required on a daily basis.  38 C.F.R. § 4.97, DC 6602 (2006).

As an initial matter, the Board notes that the Veteran's respiration is affected by his service-connected asthma, as well as his nonservice-connected chronic obstructive pulmonary disease (COPD) and chronic bronchitis.  The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).  There is no medical evidence of any such distinction regarding the Veteran's pulmonary symptomatology.  Therefore, the Board will address all of the Veteran's pulmonary symptomatology as though attributed to his service-connected asthma. 

VA and private treatment records prior to September 6, 2011 show that the Veteran's FEV-1 score was no worse than 82 percent of predicted value and that his FEV-1/FVC ratio was no worse than 70 percent.  See December 2005 VA Examination Report.  The medical records during this time period also show that he used daily inhalational or oral bronchodilator therapy, usually in the form of an Albuterol inhaler or oral doses of non-steroidal bronchodilator medication.  As such, these FEV-1 and FEV-1/FVC values and the aforementioned medication regimen would not, by themselves, permit the assignment of an evaluation greater than the 30 percent rating being contested.  However, these records also clearly indicate that the Veteran was placed on intermittent systemic corticosteroid therapy involving such steroids as Prednisone and Depo-Medrol injections prior to September 6, 2011.  Therefore, the Board concludes that the criteria for a 60 percent evaluation under DC 6602 have been met during this time period.

The Board does not find that the clinical evidence supports the assignment of a rating higher than 60 percent prior to September 6, 2011, as the requisite FEV-1 and FEV-1/FVC scores on PFTs to support a 100 percent evaluation under DC 6602 have not been objectively demonstrated.  Furthermore, the clinical evidence does not demonstrate that the Veteran's asthma was manifested by more than one attack per week with episodes of respiratory failure, or that his asthma required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications.

The Board finds that a 60 percent evaluation for service-connected asthma is not warranted after September 6, 2011.  PFTs conducted during September 2011 and December 2011 VA examinations show that the Veteran's FEV-1 score was no worse than 71 percent of predicted value and that his FEV-1/FVC ratio was no worse than 61 percent.  VA treatment records during this time period show that the Veteran's asthma was controlled with multiple inhalational medications requiring daily use.  This type of treatment is contemplated by the 30 percent rating.  See 38 C.F.R. § 4.97 (DC 6602).  The type of treatment that is required for a higher rating has not been shown.  The December 2011 VA examiner noted that the Veteran had not required at least monthly visits to a physician for care of exacerbations.  Most recently, a May 2012 treatment record noted that the Veteran's condition was stable.  Moreover, there is no indication that the Veteran's disability has resulted in more than one asthma attack per week with episodes of respiratory failure. 

The Board acknowledges that the December 2011 VA examiner noted a history of three courses of oral or parenteral corticosteroids within the past 12 months.  However, VA treatment records do not support such a finding.  It is unclear whether the examiner reviewed the claims file.  The Board also acknowledges that the Veteran was prescribed flunisolide, an inhaled corticosteroid, several times between August 2010 and January 2013.  However, a 60 percent evaluation requires that a corticosteroid be oral or parenteral.  

For all the reasons explained above, the Board finds that the staged rating assigned herein is appropriate.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Consideration has also been given regarding whether the schedular evaluations are inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Id. at 116.

The schedular evaluations in this case are adequate.  Ratings in excess of those currently assigned are provided for certain manifestations of the service-connected disorders, but the medical evidence reflects that those manifestations are not present in this case.  As noted above, the Board has considered all respiratory symptoms in rendering this decision.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  The symptoms traceable to service-connected rhinitis and lung disability are symptoms contemplated in the rating criteria.  The Veteran has not been hospitalized for treatment for his service-connected asthma or allergic rhinitis.  The Board acknowledges the Veteran's statement that he missed four days of work in 2006 because of his asthma.  See December 2011 VA Examination Report.  However, this is not sufficient evidence of marked interference with employment.  Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required.  As the schedule is adequate, no further discussion of extraschedular evaluation under 38 C.F.R. § 3.321(b) is necessary.

Finally, the Board notes that the RO granted the Veteran's claim for TDIU in November 2011, effective August 30, 2007.  The RO based its decision solely on the Veteran's service-connected PTSD.  Indeed, the Veteran stated that he was claiming TDIU "due to PTSD alone."  See November 2011 VA Form 21-0820.  Furthermore, none of the VA examination reports show that the Veteran is unemployable solely due to his asthma or allergic rhinitis.  In fact, the February 2013 VA examiner found that the Veteran's asthma would not preclude sedentary employment, and that his allergic rhinitis would not preclude either full- or part-time employment.  Therefore, any inferred question with regard to TDIU does not require further analysis with regard to asthma or rhinitis.  The Veteran is not unemployable due to either.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  


ORDER

Entitlement to an initial compensable evaluation for allergic rhinitis is denied.

Entitlement to an initial 60 percent evaluation, but no higher, prior to September 6, 2011, for asthma is granted, subject to the rules regarding payment of monetary benefits.

Entitlement to an evaluation in excess of 30 percent from September 6, 2011 for asthma is denied.


REMAND

The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the Veteran's service connection claims. 

The Veteran contends that his sleep apnea is attributable to his active duty, specifically his service in Vietnam.  He maintains that while stationed in Vietnam he "stopped breathing several times each night," but did not seek treatment because he "did not want to go to the doctor all the time."  See November 2007 VA Form 9.  In the alternative, the Veteran contends that this problem is related to his service-connected allergic rhinitis.  See May 2006 VA Form 21-4148.  The claims file contains a current diagnosis of sleep apnea.  Accordingly, the issue of service connection on a secondary basis has been raised and should be adjudicated.  See Robinson v. Mansfield, 21 Vet. App. 545 (2008).  

The Veteran seeks service connection for a heart disorder.  He contends that this problem is related to herbicide exposure.  See October 2005 VA Form 21-4138.  In the alternative, the Veteran contends that this problem is related to sleep apnea and/or his service-connected asthma.  See May 2007 VA Form 21-4148.  As with the sleep apnea claim, the issue of service connection for a heart disability on a secondary basis has been raised and should be adjudicated.  See Robinson v. Mansfield, 21 Vet. App. 545 (2008). 

A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b).  See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  38 C.F.R. § 3.310.  

Accordingly, the case is REMANDED for the following action:

1. Notify the Veteran and his representative of 38 C.F.R. § 3.310 regarding claims of secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability.  See 71 Fed. Reg. 52744 (2006). 

2. Schedule the Veteran for a VA respiratory examination to determine the nature and likely onset of any currently diagnosed sleep apnea.  The claims file, including a copy of this remand, must be reviewed in conjunction with the examination.  The examiner should answer the following questions: 

(a) Is it at least as likely as not, i.e., a 50 percent probability or greater, that the onset of any currently diagnosed sleep apnea is related to the Veteran's period of active duty, to include conceded herbicide exposure?

(b) If not, is it at least as likely as not, i.e., a 50 percent probability or greater, that any currently diagnosed sleep apnea has been caused or aggravated (permanently worsened beyond normal progression) by a service-connected disability?  

A full and complete rationale for all opinions expressed must be provided.  If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)

3. Schedule the Veteran for a VA cardiology examination to determine the nature and likely onset of any currently diagnosed heart disorder.  The claims file, including a copy of this remand, must be reviewed in conjunction with the examination.  The examiner should answer the following questions: 

(a) Is it at least as likely as not, i.e., a 50 percent probability or greater, that the onset any currently diagnosed heart condition is related to the Veteran's period active duty, to include conceded herbicide exposure?

(b) If not, is it at least as likely as not, i.e., a 50 percent probability or greater, that any currently diagnosed heart disorder has been caused or aggravated (permanently worsened beyond normal progression) by a service-connected disability?

A full and complete rationale for all opinions expressed must be provided.  If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)

4. Thereafter, readjudicate the claims remaining on appeal.  If any benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond.  The case should thereafter be returned to the Board for further appellate review.

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 case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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. 2013).



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs