Citation Nr: 1334744 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 06-08 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an extraschedular rating for bronchial asthma, rated as 30 percent disabling prior to October 25, 2006, and 60 percent disabling from May 16, 2013. 2. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to October 25, 2006. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from October 1988 to January 1993. These matters come before the Board of Veterans' Appeals (Board) from a July 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Jackson, Mississippi. These matters were most recently before the Board in March 2013 and were remanded for further development. They have now returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with the Board's remand. 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). FINDINGS OF FACT 1. For the entire period prior to October 25, 2006, and from May 16, 2013, the Veteran's symptoms associated with his service-connected asthma have been fully contemplated by the criteria in the rating schedule. 2. During the rating period on appeal prior to October 25, 2006, the Veteran was service-connected for asthma rated as 30 percent disabling, allergic rhinitis with deviated septum rated as 10 percent disabling, chronic maxillary sinusitis evaluated as 10 percent disabling, bilateral shin splits evaluated as noncompensable, and epididymitis evaluated as noncompensable, for a combined rating of 40 percent disabling. 3. Prior to October 25, 2006, the Veteran's most recent occupation was as a fork lift operator, and he had a high school diploma. 4. Giving the Veteran the benefit of the doubt, he was unable to follow a substantially gainful occupation due to his service-connected disabilities prior to October 25, 2006. CONCLUSIONS OF LAW 1. The criteria for a disability rating on an extraschedular basis for bronchial asthma, rated as 30 percent disabling prior to October 25, 2006, and 60 percent disabling from May 16, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10 (2013), 38 C.F.R. § 4.97, Diagnostic Codes 6602 (2013). 2. The criteria for entitlement to a TDIU from April 1, 2005 to October 25, 2006 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). Notice was provided in March 2005 and December 2007. VA has a duty to assist the appellant in the development of the claims. The claim file includes clinical records, lay statements, vocational records, Social Security Administration (SSA) records, and the statements of the Veteran in support of his claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. The Veteran has been afforded VA examinations/opinions, with the most recent obtained in May 2013. 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). The Board finds that, taken as a whole, the Veteran has been afforded adequate VA examinations/opinions. The reports include clinical examinations, diagnostic testing, and the Veteran's reported symptoms. The reports provide findings relevant to the criteria for rating the disabilities at issue. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008), Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Asthma The disability at issue is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 6602, which provides the following rating formula, in pertinent part: A 100 percent evaluation for findings that show FEV-1 less than 40 percent predicted, or; the ratio of 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 immune-suppressive medications. A 60 percent evaluation is assigned for FEV-1 of 40 to 55 percent predicted, or; 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 30 percent evaluation is assigned for FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A note to DC 6602 provides that in the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating periods on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Entitlement to an extraschedular rating for bronchial asthma, rated as 30 percent disabling prior to October 25, 2006, and 60 percent disabling from May 16, 2013 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). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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. The claim file includes August 2013 correspondence from T.M, the Director of Compensation Services, VBA. The correspondence reflects the opinion of the Director, in pertinent part, as follows: Our review of the evidence does not establish the veteran's service-connected asthma presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or request periods of hospitalization as to render impractical the application of the regular schedular standards prior to and on and after October 25, 2006 under 38 C.F.R. § 3.321(b)(1). The evidence does not establish that the veteran was unemployed and unemployable due to service-connected asthma prior to October 25, 2006. Entitlement to an extra-schedular total disability evaluation based on unemployability due to service-connected disability under 38 C.F.R. § 4.16(b) prior to October 25, 2006, is not established. In evaluating the Veteran's service-connected disabilities, the Board has attributed all potentially service-connected symptoms to one service-connected condition or another. See Mittleider v. West, 11 Vet. App. 181 (1998). With respect to the first prong of Thun, the Board has reviewed the evidence of record and finds that it does not show such an exceptional disability picture. A June 2004 nurse practitioner record reflects that the Veteran had allergic rhinitis due to pollen which was stable with spray. It was also noted that the hospital now had a different type of medication which would be ordered as a trial for the Veteran to help keep his asthma controlled. It was further noted that his asthma was stable. A July 2004 VA examination report reflected that the Veteran reported that he has asthma attacks worse with weather changes or on exertion. He reported that he uses an albuterol inhaler two to three times a day. He was not on any steroids at the time of the July 2004 examination, but reported that he had taken some a "couple of years ago." He reported that he thought that he could walk one mile at a moderate pace, but can only climb one flight of stairs. He reported that he had to go to the Urgent Care at the VA approximately every three months to break an asthma attack which is not relieved by his inhaler. He reported treatment by a nebulizer at those times. The examiner noted that he had reviewed the clinical records in the CPRS system and did not see any Urgent Care visits in the past year. The examiner also found that the Veteran's post bronchodilator FEV1 better reflects the Veteran's pulmonary dysfunction than other diagnostic results. Upon examination, the Veteran was well developed and well nourished. His pulse was 84, respirations 20, blood pressure 130/86, 130/88 sitting, and 130/84 reclining. His lungs were clear to auscultation and percussion without rales, rhonchi, or wheezing. There was no prolongation of the expiratory phase. There was no increase in the Veteran's AP diameter. A cardiac exam was normal. A chest x-ray was within normal limits. The examiner reviewed the Veteran's pulmonary function testing from July 21, 2004 which was apparently done because the prior test was uninterpretable. The July 21, 2004 PFTs showed a post-bronchodilator FEV-1 of 60 percent predicted, and a FEV-1/FVC of 62 percent. The examiner opined that the Veteran's post-bronchodilator FEV-1 best reflected the Veteran's pulmonary dysfunction. A September 7, 2004 clinical record reflects that the Veteran reported for a nebulizer treatment. He reported that hot humid weather has made his breathing more difficult. He also reported that his MDIs (metered-dose inhalers) did not seem to help as much in this type of weather. A September 11, 2004 clinical record reflects that the Veteran was outside when his neighbor was cutting the grass and he noticed he started wheezing soon after this. The Veteran reported that he has occasional dyspnea on exertion "especially when his Asthma flares." The Veteran testified at a November 2004 DRO hearing that he has never been treated by a private physician for his asthma. He further testified that exposure to cologne, perfume, gas, and weather changes flare up his asthma. He reported that he has never been given a home treatment. He further stated that he cannot do the outdoor activities associated with Boy Scouts. A December 2004 VA pulmonary test report reflects that post bronchodilator response was not credible and it could not be determined whether the pre or post test was erroneous. The report reflects that the post bronchodilator study of July 21, 2004 was a good study with a post-bronchodilator FEV-1 of 60. A February 2005 VA clinical record addendum reflects that the Veteran had a history of asthma and had gone to a bar the previous night and was "around a lot of smoke". The Veteran presented with a complaint of having an asthma attack and requested nebulizer therapy. He also stated that he was out of his albuterol MDI and had no nasal sprays. Upon clinical examination, the Veteran's lungs had "faint wheezes throughout but good air movement". A nebulizer treatment was given and the Veteran was counseled on the use of medication prior to exposure and exercise and well as albuterol to prevent attacks. He was also counseled on compliance with medication. The examiner found that the Veteran's asthma symptoms were "likely due to exposure and maybe viral [upper respiratory infection]." The Veteran was discharged within an hour after he improved with albuterol. An April 2005 VA clinical record reflects that the Veteran had allergic rhinitis due to pollen which was stable. It was noted that he had had a recent flare-up so he would restart Loratidine because he had stopped taking it. It was also noted that he may also take Benadryl nightly. He was instructed to wear a mask when working outside and exposed to irritants. An October 2005 VA clinical record again reflects that the Veteran was to wear a mask when working outdoors and exposed to irritants. He was to take Loratadine daily. He was also to take 2 puffs of an albuterol inhaler every four hours as needed for his asthma, and two puffs of cromolyn four times a day as needed before exercise and exposure. In March 2006 correspondence, the Veteran reported that he has had "several incapacitating asthma attacks." However, the Veteran has not provided competent evidence that these attacks required bed rest prescribed by a physician or that he had respiratory failure. There is no clinical evidence of record of an incapacitating episode. An April 2006 VA clinical record reflects that the Veteran was given an inhaled albuterol and atrovent treatment. He was also given the treatment in August 2006. The Veteran is also seeking an extra-schedular rating from May 16, 2013. A May 2013 VA examination report reflects that the Veteran's asthma requires intermittent courses or bursts of systemic corticosteroids. It was noted that there had been three such courses or bursts in the past 12 months. It was also noted that the Veteran used inhaled bronchodilator therapy daily and inhalational anti-inflammatory medication daily. He had also required the use of antibiotics in May 2013, but did not require the use of outpatient oxygen therapy or oral bronchodilators. It was noted that there had not been any asthma attacks with episodes of respiratory failure in the past 12 months. It was noted that he had one trip to the emergency room for an asthma exacerbation in the past 12 months, had been seen in the pulmonary clinic twice in the past year, and has been seen by his primary provider four times. It was further noted that PFT results accurately reflected the Veteran's current pulmonary functioning. The Veteran's PFT tests from July 2012 reflect that bronchodilator treatment was not provided. The FEV-1 was 23 percent predicted and the FEV-1/FVC was 44 percent. The examiner also opined, in pertinent part, as follows: The requirements for asthma appear to be addressed based on review of the veteran's clinical history and also his pulmonary function testing results. It is noted that asthma is a chronic illness, which has acute exacerbations, which depend on varying elements and these exacerbations are intermittent with pulmonary function returning toward baseline in many cases after the acute exacerbation. In this Veteran, his asthma is triggered by exercise, also smells such as perfumes, fuel, changes in the weather and also by increased pollen in the atmosphere. He indicated that he had difficulty working in any public place because of the precipitation of asthma symptoms. The pulmonary function tests demonstrate severe obstructive asthma that respond to bronchodilators. The Veteran's exposure to precipitating irritants and resulting bronchospasm would not be necessarily be captured on a single pulmonary function test study unless the pulmonary function test or spirometry are done at the time of the Veteran's exposure or onset of symptoms. Therefore, there are periods of time when the Veteran most surely would have significant more obstruction in his pulmonary airway from his asthma that would not have been recorded by any clinical means. This would indicate that the veteran would need to eliminate as much as possible the irritants, which precipitate his symptoms, including elimination of irritants that were found in public places, such as work and other public places. Since the exacerbations are precipitated in other situations where the Veteran is not being tested, it is possible that, at times during each day, he could have worse obstructive findings than are recorded on the pulmonary function tests as documented. However, since I have no other clinical evidence that is recorded I could only speculate as to how worse the Veteran's pulmonary function may be in these exacerbations. Also noted is that there has not been any evidence of respiratory failure based on review of system or any hospitalizations. He has had to use intermittently oral steroids, but not on a regular basis and he has not been on any immunosuppressant medications. In summary, the rating criteria as listed are as least likely as not adequate to capture the severity of the Veteran's asthma. In sum, during the rating periods on appeal, the Veteran has had complaints of flare-ups due to numerous irritants. However, he has not had respiratory failure, incapacitating episodes as defined by VA regulation (i.e. bed rest prescribed by a physician), outpatient oxygen therapy, or daily use of systemic high dose corticosteroids or immuno-suppressive medications. The Veteran's asthma disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 6602. The Veteran has averred that factors such as weather changes, exercise, and exposure to irritants such as perfume worsen his asthma. While the rating code does not specifically mention irritants or aggravating factors, it does allow for compensation for the effects of such irritants and aggravating factors. DC 6602 considers evidence of the Veteran's symptoms in a non-clinical setting by allowing for compensation based on episodes of respiratory failure, or the need for various types and frequency of medication. Thus, regardless of any contention that diagnostic testing itself may not be accurate because it cannot account for every possible irritant or aggravating factor, the diagnostic criteria does allow for consideration of such factors. The diagnostic code is broad enough to allow for a 100 percent rating for one, or more than one, attack per week of episodes of respiratory failure, regardless of the actual cause (i.e. pollen, perfume, smoke, fumes, exertion, and weather.) It also allows for compensation based on the severity of symptoms regardless of the number of attacks or on the results of diagnostic testing, but rather based on medication needed to control the asthma. The diagnostic code allows for different levels of rating based on the type and frequency of medication necessary to control and/or treat a veteran's symptom severity. The Veteran's statement that he must avoid certain activities or places (i.e. shopping mall, boy scouts) because they may, or do, cause an aggravation of his symptoms does not equate with symptoms outside of the rating criteria. Should the Veteran provide competent credible evidence that certain activities have caused him to go into respiratory failure or to require him use of certain medications, such would be provided for in the schedular rating. The Board acknowledges that avoiding the effects of irritants may require some forethought by the Veteran (e.g. taking his medication prior to exposure, wearing a mask when doing yard work); however, such does not mean that his disability symptoms fall outside the rating criteria. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, an extraschedular rating is not warranted. 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). TDIU prior to October 25, 2006 For the rating period prior to October 25, 2006, the Veteran was service-connected for asthma rated as 30 percent disabling, allergic rhinitis with deviated septum rated as 10 percent disabling, chronic maxillary sinusitis evaluated as 10 percent disabling, bilateral shin splits evaluated as noncompensable, and epididymitis evaluated as noncompensable, for a combined rating of 40 percent disabling. As noted above, total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(a) states that disabilities of both lower extremities will be considered as one disability. The Veteran did not meet the schedular criteria listed in 38 C.F.R. § 4.16(a) because he did not have at least one disability rated at 40 percent or more and a combined evaluation for compensation of 70 percent. The Board has also considered whether the Veteran is entitled to TDIU under 38 C.F.R. § 4.16(b). The issue is whether the Veteran is unable to follow a substantially gainful occupation as a result of a service-connected disabilities, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The evidence reflects that prior to October 2005, the Veteran had a high school education. He had occupational experience as a motor transporter in service (driving convoys, transporting cargo, some clerical experience) and as a fork lift operator in a steel plant, and a construction laborer. Records related to his asthma and other respiratory disabilities are noted above. As discussed above, they reflect that the Veteran reported that irritants in public places, and exertion, aggravated his allergies and/or asthma. The Veteran's occupational experience prior to October 2005 was primarily as a laborer. In addition, prior to October 2005, he had not attended college classes for a sedentary occupation; thus, his realistic job opportunities were limited. While he was physically able to work in a sedentary job away from the public, his training and educational experiences were not yet compatible with such work. The Board has also considered the Veteran's shin splints and other service-connected disabilities, but finds that the clinical evidence of record does not reflect that such disabilities would have an effect on his employability (e.g. see 2001 VA record which reflects that the Veteran's shin splints were not "a particular issue with him at this time.") A May 2013 VA opinion reflects, in pertinent part, the following: In review of the record, it is noted that the Veteran was found during this period (2005 t present) to have severe obstructive disease on the basis of his asthma and he has noted that exposure to perfumes and also exercise caused exacerbations. In view of this, the Veteran would only be able to do sedentary-type employment. Based on his history, his previous employment was working the steel mill and also around diesel fumes, which made his condition worse. In view of this, he would only be able to perform sedentary employment in which accommodations were afforded him to eliminate perfumes and other irritants present in public places. This would make it more likely than not that the veteran would not be able during the period of time (2005 to present) to find employment and to maintain employment that was financially substantial. In applying the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2013), the Board finds that TDIU under 38 C.F.R. § 4.16(b) is warranted for the rating period prior to October 25, 2006 based on the clinical findings of the Veteran's respiratory disabilities, the Veteran's statements as to his symptoms, the Veteran's prior work experience, and the Veteran's education at that time. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to an extraschedular rating for bronchial asthma, rated as 30 percent disabling prior to October 25, 2006, and 60 percent disabling from May 16, 2013 is denied. Entitlement to TDIU from April 1, 2005 to October 25, 2006 is granted subject to the rules governing payment of monetary benefits. ______________________________________________ MICHAEL D. MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs