Citation Nr: 1330551 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 11-05 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a rating higher than 30 percent for bronchial asthma with rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1989. He appealed to the Board of Veterans' Appeals (Board/BVA) from a June 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, in support of his claim, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). Partly because of his hearing testimony, this claim requires further development before being decided on appeal, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. The additional issue of entitlement to service connection for obstructive sleep apnea has been raised by the record, but has not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this additional claim so is referring it to the RO for appropriate action. REMAND Unfortunately, a remand is required in this case as concerning the Veteran's claim for a higher rating for his bronchial asthma with rhinitis. Although the Board sincerely regrets the additional delay that inevitably will result from remanding, rather than immediately deciding, this claim, it is necessary to ensure there is a complete record upon which to decide this claim so the Veteran is afforded every possible consideration. His existing 30 percent rating is under Diagnostic Code 6602, which provides that: A 100 percent evaluation may be assigned for bronchial asthma when forced expiratory volume in one second (FEV-1) is less than 40-percent predicted, or; forced expiratory volume in one second to forced vital capacity (FVC) ratio (FEV-1/FVC) is 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. Where FEV-1 is 40-55 percent predicted, or; FEV-1/FVC of 40-55 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 60 percent evaluation may be assigned. When forced expiratory volume in one second is 56-70 percent predicted, or; forced expiratory volume in one second/forced vital capacity of 57 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication, a 30 percent evaluation may be assigned. During his hearing, the Veteran contended that he meets the criteria for a higher 60 percent rating because he is taking multiple steroid medications. He said the medications were prescribed outside of the VA healthcare system, hence, the reason they were not indicated in the records that VA compensation examiners considered when evaluating him in October 2008 and February 2011. He added that he had had to even go to urgent care in January, February and March 2011 because of emergencies, and was required to see a specialist about every 3 months plus another physician, because of the frequency and severity of his disability. A review of both the recent February 2011 as well as the earlier October 2008 VA compensation examination reports reflects that both examiners stated the Veteran was not taking any corticosteroids. However, a review of the other voluminous medical treatment records in his file indicates he has indeed taken corticosteroids orally. For example, he has been prescribed oral Prednisone as well as Budesonide. His prescriptions for Fluticasone and Advair are taken via inhaler. It is unclear whether Budesonide is only taken with an inhaler. The Veteran testified that he takes two types of steroid liquids, but it is unclear which ones. There is no medical opinion in the file regarding whether hetakes the oral/liquid steroids in high daily doses. Also, as mentioned, at the beginning of his hearing he testified to treatment from one physician, a specialist, about every three months and from a second physician about every two months, although later during the hearing it was asserted that he receives treatment monthly, but that apparently was in reference to the urgent care he needed in January, February and March 2011. In light of all of this, the Board finds that another VA examination is needed reassessing the severity of this service-connected disability, rather than just an addendum to the reports of the prior evaluations, especially when considering that it now has been some 21/2 years since the most recent VA compensation examination. Because those prior VA compensation examiners did not document any steroid use, yet the Veteran's hearing testimony and other records in his file suggest the opposite, additional comment concerning this is needed. And although it was asserted that he did not need a new examination because he already meets the criteria for a higher rating, for the reasons discussed there are important questions that still need answering to permit the Board to determine the appropriate rating for his disability. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. With the appropriate releases, obtain the current medical records of the Veteran from Dr. Michelle Harkins of Tricare as well as his medical records from the Tricare program at Kerrigan Air Force Base. 2. Upon receipt of all additional records, schedule another VA compensation examination reassessing the severity of the Veteran's service-connected bronchial asthma with rhinitis. All necessary diagnostic testing and evaluation should be performed, including a pulmonary function test (PFT) to determine his FEV-1 and FEV-1/FVC, etc. The examiner should also address: (1) how often the Veteran sees a physician for his respiratory disorder; (2) the exact nature and prescription dose strength for his medications, indicating whether he has been on systemic (oral or parenteral) corticosteroids and/or systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications; and (3) the initial date of the prescription for any of these medications, All opinions expressed by the examiner must be supported by explanatory rationale. 3. Review the report of the examination to ensure it addresses the relevant rating criteria, including the Veteran's assertion that he takes steroids of the type contemplated for a higher disability rating. If the examination report does not contain the required information, take corrective action. 38 C.F.R. § 4.2. 4. Then readjudicate this increased-rating claim in light of all additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).