Citation Nr: 1330513 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 08-01 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for asthma, rated as 10 percent disabling prior to March 14, 2006. 2. Entitlement to an increased rating for asthma, rated as 30 percent disabling from March 14, 2006. 3. Entitlement to service connection for a disability of the bilateral wrists, to include carpal tunnel syndrome (CTS). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from April 1983 to September 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction over the claims file was subsequently transferred to the RO in Waco, Texas. The claims were previously before the Board in September 2012, at which time they were remanded for additional development. With respect to the issue of entitlement to an increased rating for asthma, the RO was instructed to obtain treatment records from the Brooke Army Medical Center as well as to schedule the Veteran for a VA examination to determine the current nature and severity of the Veteran's asthma. The Board finds that there has been substantial compliance with the mandates of the September 2012 remand with respect to this issue and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The issue of entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar spondylosis and scoliosis with hemivertebra L4, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for a disability of the bilateral wrists, and entitlement to an increased rating for asthma, rated as 30 percent disabling from March 14, 2006, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Prior to March 14, 2006, the Veteran's asthma was manifested by evidence of daily inhalational or oral bronchodilator therapy. CONCLUSION OF LAW The criteria for a rating of 30 percent for asthma prior to March 14, 2006 have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.27, 4.97, Diagnostic Code 6602 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, VA notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in November 2005 and December 2005 letters. The Veteran also received further notice regarding the assignment of a disability rating and/or effective date, in the event of award of the benefit sought, in a March 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice, specifically notice of the Dingess elements, was provided after the initial adjudication of the claims, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claims. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claims were readjudicated in subsequent supplemental statements of the case. Therefore, any timing deficiency has been remedied. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and medical records from Brooke Army Medical Center. Additionally, prior to March 14, 2006, the Veteran was provided an adequate VA examination in January 2006 which assessed the severity of her service-connected asthma. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate) For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The Veteran contends that an evaluation in excess of 10 percent is warranted for her service-connected asthma prior to March 14, 2006. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks entitlement to a higher rating for her service-connected asthma. She was initially granted entitlement to service connection for asthma in a March 2005 rating decision, at which time she was awarded a 10 percent disability rating pursuant to Diagnostic Code 6602, effective October 1, 2004. She did not submit a notice of disagreement with respect to that determination. However, in July 2005, she requested an "upgrade/reevaluation" for her asthma, among other disabilities, stating that she felt that a 30 percent rating was warranted since she had to use an inhaler twice per day to treat her asthma. In a February 2010 rating decision, the RO increased her disability rating to 30 percent under Diagnostic Code 6602 effective March 14, 2006, the day treatment records purportedly showed prescription of a daily bronchodilator. As such, the Board will initially evaluate the propriety of the 10 percent rating assigned prior to March 14, 2006. Under Diagnostic Code 6602, a 10 percent evaluation is warranted for bronchial asthma when there is evidence of a Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent of predicated value; FEV-1/Forced vital capacity (FVC) of 71 to 80 percent of predicated value; or intermittent inhalational or oral bronchodilator therapy. A 30 percent evaluation is warranted for bronchial asthma when there is evidence of an FEV-1 of 56-to 70-percent of predicated value; FEV-1/ FVC of 56 to 70 percent of predicated value; daily inhalational or oral bronchodilator therapy; or inhalational anti-inflammatory medication. A 60 percent evaluation is warranted with an FEV-1 of 40-to 55-percent of predicated value; FEV-1/FVC of 40 to 55 percent; 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 schedular 100 percent disability rating is warranted for an 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. The Veteran is not required to meet each of the stated criteria in order for an increased rating to be assigned. Rather, he need only meet one criterion because the criteria are listed in the alternative. See Johnson v. Brown, 7 Vet. App. 95 (1994). The Veteran was afforded a VA examination in January 2005, at which time she was diagnosed as having asthma. The Veteran reported experiencing monthly asthmatic attacks, which were treated with inhalation of an anti-inflammatory medication. She further reported needing to visit a physician to control the asthmatic attacks as often as one time per year. Pulmonary function studies revealed that the Veteran had an FEV-1 of 97 percent of predicated. In December 2005, the Veteran submitted a prescription for Azmacort from the Brook Army Medical Center Pharmacy, which instructed her to inhale 2 puffs twice per day. A Medication Profile from the Brook Army Medical Center indicated that she was indeed prescribed Triamcinolone (Azmacort) as early as September 2004. The Veteran was afforded a VA fee-basis examination in February 2006, at which time she was again diagnosed as having asthma. The Veteran reported experiencing monthly asthmatic attacks, which were treated with inhalation of anti-inflammatory medication and intermittent bronchodilator inhalation. She further reported needing to visit a physician to control the asthmatic attacks as often as 4 times per year. Pulmonary function studies revealed that the Veteran had an FEV-1 of 81 percent of predicated before bronchodilators and 82 percent of predicated after bronchodilators. In an April 2009 statement, the Veteran's representative argued that an increased rating was warranted for the Veteran's asthma as the Azmacort inhaler included corticosteroids as an active ingredient. Indeed, Azmacort contains the active ingredient of triamcinolone, a synthetic corticosteroid. At the outset, the Board finds that a 30 percent disability rating, and no higher, is warranted for asthma for the period prior to March 14, 2006. Indeed, the Veteran has stated that she treated her asthma with an inhaler twice per day. This is corroborated by the prescription for Azmacort from the Brook Army Medical Center Pharmacy, which instructed her to inhale 2 puffs twice per day. A Medication Profile from the Brook Army Medical Center confirmed that she was prescribed a Triamcinolone (Azmacort) inhaler as early as September 2004. As such, daily inhalational or oral bronchodilator therapy sufficient to warrant a 30 percent rating under Diagnostic Code 6602 has been shown during the entire period on appeal prior to March 14, 2006. However, the Board also finds that a rating in excess of 30 percent is not warranted for any time during the period on appeal prior to March 14, 2006. As to meeting the criteria for a higher, 60 percent, rating for her asthma based on her pulmonary function tests, the Board notes that pulmonary function tests do not show the Veteran ever having an FEV-1 or FEV-1/FVC score of between 40 and 55 percent of predicated values. Therefore, the Board finds that the preponderance of the competent and credible medical evidence of record does not show that the Veteran's asthma causes FEV-1 and/or FEV-1/FVC to be 40 to 55 percent of predicated value prior to March 14, 2006. See 38 C.F.R. § 4.97, Diagnostic Code 6602. As to meeting the criteria for a higher, 60 percent, rating for her asthma based on steroid use, the Board acknowledges that the Veteran was prescribed an Azmacort inhaler, with a synthetic corticosteroid as the active ingredient, to treat her asthma. However, there is no medical evidence that the Veteran required intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids during the period on appeal prior to March 14, 2006. Crucially, Diagnostic Code 6602 distinguishes between "inhalational" therapy and "systemic" therapy. Specifically, if no more than "inhalational" therapy is required, a 10 or 30 percent disability rating is assigned. If treatment requires "systemic" therapy, higher ratings are assigned depending on frequency of use. By its own language, Diagnostic Code 6602 indicates that asthma treated by inhalational therapy alone is rated differently than those requiring non-inhalational, systemic therapy. See LaPointe v. Nicholson, 21 Vet. App. 411, 2006 WL 2797153 (Vet. App. 2006) (noting that "DC 6602 clearly makes a distinction between the intermittent or daily use of systemic corticosteroids and the intermittent or daily use of inhaled corticosteroids"). Indeed, the Court in LaPointe affirmed the Board's previous finding that DC 6602 "requires, among other things, the systemic use of oral or parenteral, not inhaled, corticosteroids to qualify for a rating higher than 30[%]." See id. [The Board acknowledges that LaPointe is a non-precedential decision, but notes that a non-presidential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992)]. Therefore, the Board finds that the preponderance of the competent and credible medical evidence of record does not show that the Veteran's asthma requires at least three courses of systemic corticosteroids per year. See 38 C.F.R. § 4.97, Diagnostic Code 6602. Lastly, the Board finds that the Veteran does not meet the criteria for a higher, 60 percent, rating for her asthma based on at least monthly visits to a physician. To the contrary, the records reflects that the Veteran saw a physician for asthma treatment, at most, 4 times per year. Accordingly, the Board finds that the preponderance of the competent and credible medical evidence of record also does not show that the Veteran's asthma required at least monthly visits to a physician prior to March 14, 2006. See 38 C.F.R. § 4.97, Diagnostic Code 6602. Given the above, the Board finds that the Veteran does not meet the criteria for an evaluation greater than 30 percent for her service-connected asthma at any time during the appeal prior to March 14, 2006. Id. The Board has considered whether the Veteran is entitled to consideration of an extraschedular rating for the service-connected disability discussed above. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 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) (2012). 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 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, to accord justice, 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 as to the Veteran's asthma that the available schedular evaluation for the service-connected disability is inadequate. The rating criteria reasonably describe the Veteran's disability level and symptomatology due to her service-connected disability. There is no competent credible evidence of record that the Veteran has symptoms of any of the disabilities which are not considered in the rating criteria. Therefore, a further analysis under Thun is not warranted. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Board notes that the Veteran has not asserted, and it has not been reasonably raised by the record, that she is rendered unemployable due to any service-connected disability, either singularly or in combination. Accordingly, the Board concludes that a claim for TDIU is not for appellate consideration. ORDER A disability rating of 30 percent for asthma prior to March 14, 2006, is granted. REMAND As to the issue of entitlement to an increased rating for asthma, rated as 30 percent disabling from March 14, 2006, the Board notes that in September 2013, the Board received a report of private pulmonary function testing performed in December 2012. The record does not reflect that the RO has considered this additional evidence in conjunction with adjudication of the issue of entitlement to an increased rating for asthma, rated as 30 percent disabling from March 14, 2006. See 38 C.F.R. § 20.1304 (West 2012). Additionally, the record does not reflect that either the Veteran or her representative has waived RO consideration of the additional evidence. As such, the issue must be remanded to the RO for consideration of the additional evidence. The Veteran also seeks entitlement to service connection for a disability of the bilateral wrists, to include CTS. This issue was also remanded in September 2012 to obtain a medical opinion as to whether it was more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any currently diagnosed bilateral wrist or hand disability was etiologically related to the Veteran's active duty service, to include an October 1987 left hand injury and many years of clerical duties including typing. However, while the post-remand record shows that the Veteran was thereafter afforded a VA examination in June 2013 to obtain this medical opinion, with an additional opinion obtained in July 2013, the Board finds the examination inadequate. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board has reached this conclusion because the June 2013 examiner did not provide an opinion as to the likely nexus to service of the Veteran's diagnosed DeQuervain's tendonitis and radiocarpal joint primary osteoarthritis, while the July 2013 negative nexus opinion was accompanied by an unclear and seemingly self-contradictory rationale. Specifically, the July 2013 opinion indicated that the Veteran's June 2004 Report of Medical History was silent as to any hand or wrist condition, and therefore it was less likely than not that the claimed condition was incurred during or aggravated by her time in service. Additionally, the examiner opined that the Veteran's October 1987 left hand injury resulted in normal radiographs with a single instance of conservative treatment, with no additional treatment thereafter. As such, the examiner concluded that the October 1987 injury was acute, discrete in its location, and self-limiting, rendering it less likely than not "an event resulting in residuals or cause of aggravation." However, the July 2013 opinion also indicated that the Veteran's disability clearly and mistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The opinion went on to explain that although the Veteran's radiographs observed mild degenerative changes of the radiocarpal region of the hand, these changes were merely mild; therefore, the radiographic observations were "as least as likely as not consistent with the Veteran's normal and natural aging process." Curiously, the VA opinion did not cite any evidence showing that a wrist disability preexisted active duty service. Moreover, the examiner used the incorrect "less likely than not" standard when addressing the likelihood of in-service aggravation of a preexisting condition, as the more stringent "clear and unmistakable evidence" standard is to be used in such circumstances. On the one hand, the opinion indicates that a current bilateral wrist disability preexisted and was not aggravated by service, while on the other hand, it suggests that a current bilateral wrist disability was not incurred until after active duty. Given this inconsistency and inadequacy, the Board finds that a remand is required to obtain an additional addendum opinion, and, if necessary, additional VA examination, to obtain the needed medical opinion. See 38 U.S.C.A. § 5103A(d); McLendon, supra; Stegall v. West, 11 Vet. App. 268 (1998) (holding that, where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain an addendum opinion to the July 2013 VA opinion by the same examiner if available, or another qualified examiner if she is not available. The claims file should be provided to the examiner in connection with the examination. After a review of the record on appeal, and after completion of any additional examination of the Veteran deemed necessary to render the requested opinion, the examiner should provide answers to the following questions: a. As to each diagnosed chronic wrist/hand disorder, is it at least as likely as not (50 percent probability or more) that it was caused by or initially manifested during the Veteran's period of active duty? c. As to each diagnosed chronic wrist/hand disorder, did it preexist the Veteran's period of active duty? d. As to each chronic wrist/hand disorder that preexisted the Veteran's period of active duty, was it aggravated by her subsequent period of active duty? e. If the examiner finds that a wrist/hand disorder preexisted service, then the examiner must identify the clear and unmistakable (obvious and manifest) evidence that serves as a basis for the opinion. The examiner should then offer an opinion as to whether clear and unmistakable (obvious and manifest) demonstrates that the disability was not aggravated during service. The examiner must identify the clear and unmistakable (obvious and manifest) evidence that serves as a basis for the opinion. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. In providing answers to the above questions, the examiner should specifically comment on the relationship, if any, between the documented in-service October 1987 left hand injury as well as any abnormal radiographic findings. In providing answers to the above questions, the examiner is advised that the Veteran is competent and credible to report having experienced wrist/hand pain in-service and since that time because such symptoms are capable of observation by a lay person even when not documented in her medical records. In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. 2. Thereafter, readjudicate the remaining issues on appeal, with consideration of all additional evidence of record received since issuance of the most recent supplemental statement of the case in August 2013. If either benefit sought on appeal is not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs