Citation Nr: 1333709 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-24 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for asthma. ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from February 2000 to February 2002, and from October 2004 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in May 2013 for further development. There has been substantial compliance with the mandates of the remand and the Board will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. For the period prior to January 26, 2009, the Veteran's asthma was manifested by FEV-1 no worse than 82 percent of predicted value, FEV-1/FVC no worse than 78 percent of predicted value; and treatment did not require daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. 2. For the period prior to January 26, 2009, the Veteran's asthma is manifested by daily inhalational bronchodilator therapy; however, it is not manifested by at least monthly visits to a physician for required care of exacerbations or intermittent courses of systemic corticosteroids, nor pulmonary function test (PFT) values of FEV-1 of 40 to 55 percent of predicted value, FEV-1/FVC of 40 to 55 percent of predicted value. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected asthma have not been met prior to January 26, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code (DC) 6602 (2006). 2. The criteria for entitlement to a disability evaluation of 30 percent, but no higher, for the Veteran's service-connected asthma have been met from January 26, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code (DC) 6602 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance 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); and Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 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. VA has obtained VA treatment records, reviewed the Veteran's Virtual VA file and VBMS file, assisted the Veteran in obtaining evidence, and afforded her adequate VA examinations. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations In the March 2007 rating action on appeal, the RO granted service connection for asthma and assigned a 10 percent evaluation, effective January 8, 2006 (the date following military discharge). The Veteran contends that her condition is more severe and warrants a higher rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Respiratory disorders are evaluated under Diagnostic Codes (DCs) 6600 through 6817, and 6822 through 6847. Pursuant to 38 C.F.R. § 4.96(a), ratings under these 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 evaluation 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 10 percent disability rating under 38 C.F.R. § 4.97, DC 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 exercise-induced asthma, the Board finds that DC 6602 is the most appropriate diagnostic code for rating the Veteran's disability. Accordingly, the Board will proceed with an analysis of the Veteran's disability under this Diagnostic Code. 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 her initial rating claim in August 2006, 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). Factual Background A May 2006 VA treatment record shows the Veteran was prescribed Albuterol. A January 2007 VA examination report shows that the Veteran had controlled exercise-induced asthma that improved over the years and rarely gave her problems. It was noted that she had an inhaler to use as needed, but she did not need it. No PFTs were performed. In a notice of disagreement received in September 2007, the Veteran reported using her inhaler "more than normal" and used her relative's breathing machine more than four times in a month due to pollen. A March 2008 VA treatment record shows that the Veteran used the Albuterol inhaler "almost daily" and had no emergency room (ER) visits for asthma. The assessment showed stable asthma. A March 2008 VA treatment record shows that her active outpatient medications included Albuterol 90 MCG (CFC-F) 200 D oral inhaler, which she was instructed to inhale two puffs by mouth every four hours as needed for asthma exacerbations. It was noted that she was switched from Levalbuterol. In a statement dated in April 2008, the Veteran's mother reported that the Veteran had trouble with her asthma and had to use a breathing machine to help with wheezing and shortness of breath since the inhaler was not "really helping." She noted that walking long distances caused a little shortness of breath in the Veteran. At the June 2008 VA examination, the Veteran reported wheezing that occurred every couple of months. She reported that the attacks would last for 30 minutes with wheezing and shortness of breath. She reported no ER visits in the past 12 months for asthma. In between times, she noticed wheezing with exercise or being around animals, but no full blown attacks. The report noted that her exercise-induced asthma was considered stable. Treatment consisted of a Mometasone inhaler and Albuterol inhaler. The examiner noted that there was no use of oral and parenteral steroids, antibiotics, or other immunosuppressive treatment. Treatment response was noted as fair; some symptoms remained with treatment "but improved." Test results showed that FEV-1 was 78 percent of predicted value, which increased to 82 percent of predicted value after bronchodilator use. The ratio was 83 percent of predicted value which decreased to 78 percent of predicted value after bronchodilator use. The examiner noted that the Veteran was not currently working, but her lack of employment was "unrelated to asthma." A January 26, 2009 VA treatment record shows complaints that her asthma was giving her more trouble. She took Albuterol daily and occasionally needed additional puffs in the cold. She also took Mometasone on a regular basis. The VA physician noted "NEEDING ALBUTEROL DAILY. WILL TRY ADDING SINGULAIR TO HELP SYMPTOMS. CONTINUE MOMETASONE DAILY. ALBUTEROL PRN." An April 2009 VA treatment report shows she requested a refill for Montelukast, but did not meet the requirement for a prescription. She was given Mometasone and Albuterol inhalers. A July 2009 VA examination report shows that the Veteran's asthma was stable and that she used Mometasone inhaler and Albuterol inhaler on an as needed basis. The examiner noted that treatment did not consist of oral or parenteral steroids, antibiotics or other immunosuppressives. Treatment response was deemed good as it had relieved her symptoms. The examiner reiterated June 2008 PFT results. The examiner further noted that there were no significant occupational effects from the asthma. The Veteran was not working "due to her son." September 2009 VA treatment records show that active medications included Albuterol 90 MCG (CFC-F) 200 D oral inhaler. She was instructed to inhale 2 puffs by month every four hours as needed. She was also on Mometasone Furoate 220 MCG Oral Inhaler 60. She was directed to inhale 1 puff by mouth at bedtime. Pursuant to the Board remand, the Veteran was afforded a VA examination in July 2013. The Veteran reported difficulty breathing usually related to exertion but also in the presence of animals. She used Albuterol daily. She denied being hospitalized for asthma. It was further noted that she used inhalation bronchodilator therapy daily and used Mometasone Furoate 220 mcg (one inhalation at night). The examiner indicated that the Veteran required the use of oral/parenteral corticosteroid medications and specified the usage as "chronic low dose (maintenance) corticosteroids." The examiner further indicated that the Veteran required the use of daily inhalational bronchodilator therapy, but did not require use of oral bronchodilators, antibiotics and outpatient oxygen therapy. The examiner commented that the Veteran's respiratory condition did not impact her ability to work. July 2013 PFT results show that pre-bronchodilator, FEV-1 was 72 percent of predicted value, and FEV-1/FVC was 70 percent of predicted value. Post-bronchodilator, the PFT results showed FEV-1 at 79 percent of predicted value and FEV-1/FVC at 76 percent of predicted value. Analysis Based on the foregoing, the Veteran's asthma warrants a 30 percent rating, effective from January 26, 2009. A 30 percent rating is not warranted prior to January 26, 2009, since PFT values did not reflect FEV-1 of 56 to 70 percent of predicted value or FEV-1/FVC of 56 to 70 percent of predicted value or daily bronchodilator therapy. The Veteran was instructed to take Albuterol on an as needed basis. The Board acknowledges that while a March 2008 VA treatment record shows that she was taking it "almost daily," there was no indication that she took it on a daily basis as required by the rating criteria for a 30 percent rating. It appears that there was intermittent use. There was no evidence of use of inhalational anti-inflammatory medication as well. Also, a 60 percent rating is not warranted. Even though she reported exacerbations, the June 2008 VA examination notes wheezing attacks that occurred every couple of months. There were no ER visits in the past year for asthma and no indication that she had at least monthly visits to a physician for required care of her exacerbations. Further, while she took Mometasone, which is considered a corticosteroid, it is not systemic as required in a 60 percent rating. Moreover, PFT results were not FEV-1 40 to 55 percent of predicted value or FEV-1/FVC of 40 to 55 percent of predicted value. Additionally, the maximum rating is not warranted as there was no evidence of more than one attack per week with episodes of respiratory failure. Again, the wheezing occurred every couple of months and not on a weekly basis. Further, the wheezing did not led to any respiratory failures. And there was no daily required use of systemic high dose corticosteroids or immunosuppressive medications. Again, while she took Mometasone, which is classified as a corticosteroid, it is not considered a systemic corticosteroid. On VA examination report dated in June 2008, the VA examiner noted that the Veteran's treatment did not include immunosuppressive therapy. Further, PFT results did not show FEV-1 less than 40 percent of predicted value, or FEV-1/FVC less than 40 percent of predicted value. In her September 2007 statement, the Veteran noted her difficulty breathing and use of a breathing machine at night. In support of her claim, her mother provided a statement that was received in April 2008 that reiterated the Veteran's symptoms and use of a breathing machine. The Board has considered these statements as they relate to her symptoms prior to January 26, 2009. The Veteran and her mother are competent to report observable symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board notes that the Veteran admitted that she used a relative's breathing machine, and there is no indication in the records that she herself was prescribed such treatment. This indicates to the Board that medical personnel did not deem her asthma severe enough to require such treatment. Even if the Board were to consider this as part of her treatment, the Board notes that this is inhalational therapy that was not used on a daily basis. As the Veteran had stated, she used the machine "more than 4x's a month." Even considering the Veteran's and her mother's statements, the symptoms reported do not warrant a higher rating. Clinical reports and VA examination reports (which considered the Veteran's symptoms, PFT test results and types of treatment) also show manifestations of asthma that are reflected in a 10 percent rating, prior to January 26, 2009. Overall, a rating in excess of 10 percent prior to January 26, 2009 is not warranted. PFT results show that FEV-1 and FEV-1/FVC were no less than 78 percent of predicted value and thus exceed results that would warrant higher ratings. Also, the evidence demonstrated treatment consisting of occasional use of Albuterol, and use of a corticosteroid that is not systemic. Her wheezing episodes did not require monthly visits to a physician or result in episodes of respiratory failure. The Board finds that she is properly assigned a 10 percent rating, prior to January 26, 2009, and is not entitled to a higher evaluation under DC 6602. From January 26, 2009, the Veteran's asthma warrants a disability evaluation of 30 percent (but no higher). A January 26, 2009 VA treatment reports shows daily use of Albuterol. While treatment records in 2009 reflect that the Veteran was to take Albuterol on an "as needed basis," the Veteran is competent to testify as to the symptoms of her disabilities and the types of treatment that she finds effective. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that an increased rating of 30 percent is warranted based on her daily use of bronchodilator therapy as reflected in the January 26, 2009 VA treatment record. However, an even higher rating is not warranted. PFT results shows that FEV-1 was no worse than 79 percent of predicted value and FEV-1/FVC was no less than 76 percent of predicted value. Neither reading more closely approximates the PFT's results contemplated by the higher ratings. Also, while treatment included Mometasone, which is a corticosteroid, it is not of the systemic kind contemplated by the Diagnostic Code to warrant 60 percent or 100 percent ratings. Additionally, the Veteran's treatment did not consist of monthly visits to a physician for required care of exacerbation or intermittent courses of systemic corticosteroids to warrant a 60 percent rating. The Veteran's treatment consisted of taking Albuterol daily and Mometasone. Further, there was no evidence of more than one attack a week with episodes of respiratory failure and required daily use of systemic high dose corticosteroids or immunosuppressive medications to warrant a 100 percent rating. While the most recent examination indicates the use of oral/parenteral corticosteroid medications, she only required a low dose. Also, the July 2013 examiner did not mark the appropriate boxes to indicate any requirement of systemic corticosteroids. Further, the examiner marked the appropriate box to indicate that the Veteran did not have any asthma attacks with episodes of respiratory failure in the past 12 months. The Veteran denied being hospitalized for asthma. Thus, the maximum rating is not warranted. The Board notes that no additional statements have been provided by the Veteran from January 26, 2009 onward. Symptoms reported by the Veteran have been memorialized in treatment records and VA examination reports, and have been addressed above. Since she is competent to report her symptoms, the Board has taken her reports into consideration when granting the increased rating of 30 percent. Overall, the Board concludes that a 30 percent rating (but no higher) is warranted from January 26, 2009. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a more favorable decision than set forth herein. The Board notes that this determination represents a denial for the period prior to January 26, 2009, and a partial grant for the period since that time. Should the severity of the asthma increase in the future, the Veteran may always file a claim for an increased rating. Other considerations Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's asthma are contemplated by the applicable rating criteria. The medical evidence fails to show anything unique or inadequate about the Veteran's exercise-induced asthma that would render the schedular criteria inadequate. The schedular criteria for rating asthma specifically provides for ratings based on PFT results and the type of treatment. Here, the Veteran's asthma required intermittent use of medication prior to January 26, 2009 and requires daily use of medication from January 26, 2009. Comparing the Veteran's disability level and symptomatology of asthma to the rating schedule, the degree of disability caused by her asthma is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial 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). Here, there is no evidence of unemployability due to the service-connected asthma. Hence further consideration of TDIU is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial evaluation in excess of 10 percent for asthma prior to January 26, 2009 is denied. Entitlement to assignment of a 30 percent rating (but no higher) for asthma from January 26, 2009 is granted, subject to laws and regulations applicable to payment of VA benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs