Citation Nr: 1330121	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  13-00 553	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable rating for asthma.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

R. Erdheim, Counsel


INTRODUCTION

The Veteran served on active duty from July 1979 to March 1982. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which awarded service connection for asthma and assigned a noncompensable rating effective April 2009.  This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.  

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).


FINDING OF FACT

Throughout the pendency of the appeal, the Veteran's asthma has not required inhalational bronchodilator therapy or any other medication.  There have been no documented asthma attacks.  Pulmonary function test findings taken pre-bronchodilator were greater than a FEV-1 of 80 percent predicted, or a FEV-1/FVC of 80 percent predicted. 


CONCLUSION OF LAW

The criteria for a compensable rating for asthma have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.9, Diagnostic Code 6602 (2013). 






REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for asthma.  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).  No additional discussion of the duty to notify is therefore required. 

VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection.  The Veteran's service treatment records and post-service VA treatment records have been obtained and considered.  The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal.  The Board has reviewed the Veteran's Virtual VA and VBMS claims file.  The Veteran has also been afforded VA examinations in December 2009, with an addendum in January 2010, and in June 2012 and July 2013 in order adjudicate his initial rating claim.  The Board finds these examinations to be adequate in order to evaluate the Veteran's asthma as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria.  Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. 

The Veteran's claim was remanded in June 2013 to obtain additional VA treatment records and to afford the Veteran a VA examination.  Those directive has been accomplished and thus there is substantial compliance.

Thus, the Board finds that VA has fully satisfied the duty to assist. 

II.  Analysis

The Veteran contends that his asthma warrants a compensable rating because he has shortness of breath and trouble breathing, made worse by his dysphagia. 

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4 (2012).  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings 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. § 4.7 (2012).  The Board will consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 

Respiratory disorders are rated under Diagnostic Codes 6600 through 6817 and 6822 through 6847.  Pursuant to 38 C.F.R. § 4.96(a), ratings under those diagnostic codes will not be combined with each other.  Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher rating only where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.96(a). 

The Veteran is currently in receipt of a noncompensable disability rating under Diagnostic Code 6602, which pertains to bronchial asthma.  The Board has considered the applicability of other diagnostic codes, but as the Veteran has not been diagnosed with any pulmonary disorder other than bronchial asthma, the Board finds that Diagnostic Code 6602 is the most appropriate diagnostic code for rating the Veteran's disability.  

Diagnostic Code 6602 provides for a 10 percent rating where pulmonary function tests (PFTs) show any of the following: FEV-1 of 71 to 80 percent predicted, FEV-1/FVC of 71 to 80 percent; or intermittent inhalational or oral bronchodilator therapy.  A 30 percent rating is warranted where pulmonary function tests (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 rating is warranted where PFTs 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 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 immuno-suppressive medications are required on a daily basis.  38 C.F.R. § 4.97, Diagnostic Code 6602. 

Turning to the evidence of record, VA treatment records dated in 2008 and 2009 are negative for symptoms or treatment of asthma.  On December 2009 VA examination, the Veteran denied having asthma but stated that he had symptoms of shortness of breath and wheezing.  He had never been on inhalers.  On January 2010 follow-up, pulmonary function testing showed an FEV-1 of 82 percent predicted and an FEV-1/FVC of 89 percent predicted.  Post-bronchodilator measurements were not performed.  The Veteran was coughing and having trouble performing lung volume maneuvers.  He gave fair effort.  

VA treatment records reflect that in February 2011, the Veteran was noted to have a history of asthma that was clinically quiescent.  He had had a normal spirometry.  

On June 2012 VA examination, asthma was not diagnosed.  Pulmonary function testing showed an FEV-1 of 82 percent predicted, and an FEV-1/FVC of 89 percent predicted.  Post-bronchodilator testing was not conducted because the results were considered to be normal. 

On July 2013 VA examination, the examiner reviewed the claims file and stated that the Veteran did not have asthma and has not been diagnosed with asthma.  His symptoms could be related to other etiologies, such as allergies or bronchitis, but he did not have asthma.  His 2010 spirometry was essentially normal.

In this case, the Board finds that a compensable rating for asthma is not warranted.  The Board notes the Veteran's reports that he has trouble breathing.  However, he has also been diagnosed with and treated for sleep apnea.  His breathing trouble has not been diagnosed as associated with asthma.  Rather, he has been found to not suffer from asthma.  Accordingly, a higher rating is not warranted.

III.  Other Considerations

A claim for a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  In this regard, while the Veteran has filed a claim for a TDIU, he has not contended that his asthma interferes with his employment, and there is no evidence that such is the case, especially in light of the fact that he in fact has not been clinically diagnosed with asthma.  Hence further consideration of TDIU is not warranted. 

An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

The evidence in this case does not show that the Veteran has manifestations of the asthma that are not contemplated by the rating criteria.  His disability is manifested by shortness of breath.  The rating criteria contemplate these symptoms.  See Diagnostic Code 6602.  Accordingly, referral for consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  However, the weight of the credible evidence demonstrates that the Veteran's asthma has not warranted a compensable rating.  Because the preponderance of the evidence is against the claim, the claim must be denied.  38 U.S.C.A. § 5107(b)(West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

A compensable rating for asthma is denied.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs